Adult Guardian Advocacy vs. Temporary Custody of a Child
- Lauren Richardson
- Sep 29
- 4 min read
By: Johannah Tador
Have you ever been in charge of a vulnerable loved one before and don’t know where to start? Whether they are under 18 or over 65, the legal field can be difficult to navigate for many. For example, two legal processes that often become confusing and often misunderstood are guardian advocacy for a developmentally disordered adult and temporary custody of a child by an extended family member. Although both involve granting someone legal authority to care for another person and establishing a legal obligation towards this person, they serve different purposes. Adult guardian advocacy is designed to protect and support adults with developmental disabilities or conditions that prevent them from making important decisions on their own. On the other hand, temporary custody allows relatives to step in and care for a child when parents are unable to do so without taking away the parents’ parental rights. Thus, it is important to understand how these two types of legal cases differ can help families and friends make better informed choices that protect the best interests of their loved ones.
What Do You Need to Prove to Get Temporary Custody in Florida?
Under Florida Statute Chapter 751.03, you must file a petition with the Court that shows the following before obtaining a court order:
You are an extended family member of the child.
Child information such as the name, date of birth, current address, where they have lived for the past five years, including who they lived with, and any past custody cases involving the child.
Parents information such as names, dates of birth, and current addresses of the child’s parents.
Your information such as address, mailing address, relationship to the child, what role you play in their life,
Parental consent or proof of harm through either written consent from both parents OR evidence that the child has been abandoned, abused, or neglected.
Most importantly, you must prove to the Court why you especially need custody of the child. Specifically, you should explain the necessity of the custody order, as you cannot enroll the child in school, obtain medical treatment, or apply for certain benefits on their behalf until you have a temporary custody order. For example, without a custody order, a doctor may refuse to treat the child without the legal parent present, or a school may not allow you to register the child for classes. Explaining what you can’t do without the order is a good way to convince the Court of the importance of your request. You must also address why granting custody is in the child’s best interest, whether that involves providing a more stable home environment, access to education, or seeking necessary healthcare. Additionally, you should clarify how long you expect the custody to last. Most minor custody cases will extend until the child turns 18 years old if a parent does not petition to end it sooner. The Court will also want to know if you have a transition plan in place for when the legal parents visit or eventually take back custody, since temporary custody does not terminate the parents’ legal rights. In summary, the Court wants to know who you are, your relationship to the child, why the child needs to be with you, and how this plan serves the child’s best interests.
What Do You Need to Prove to Become a Guardian Advocate in Florida?
Under Florida Statute 393.12, you must file a petition with the Court that shows the following before obtaining a court order:
The individual has a developmental disability (as defined in Florida Statute 393.063, which includes conditions such as spina bifida, autism, intellectual disability, Prader–Willi syndrome, or cerebral palsy).
That the disability manifested before the age of 18, constituting a substantial handicap, and must be expected to continue indefinitely.
The individual must be able to perform some but not all of the activities of daily living.
Information about the individual’s personal details such as their name, date of birth, and current address.
Information about their family or current caregivers.
Your information, including your address, mailing address, and relationship to the individual.
Once the petition is filed, you must provide notice to interested parties while the Court appoints an attorney to represent the individual with a disability, ensuring that their due process rights are protected.
From there, a hearing will be held to determine the necessity of a guardian advocate and consider whether the guardianship affects the person’s advance health care directive (if one exists).
At the end of the day, it is important to get across to the magistrate or judge why a guardian advocate is needed. Why is this in the individual’s best interest? Without an advocate, one’s caretaker cannot consent to medical treatment on behalf of the individual, arrange housing, apply for government benefits such as Social Security or Medicaid, or manage their financial accounts. A common myth is that a guardian advocate takes away all of a person’s rights, but this is not true 100% of the time. The judge only gives the guardian the rights that the person truly needs help with. The guardian advocate must explain to the Court why the person can’t handle those responsibilities on their own, and the judge decides based on that explanation and the input of the attorney for the developmentally disabled person during the hearing.
Which one is more difficult to obtain?
The difficulty of obtaining custody or guardianship depends on the specific circumstances. When parents do not consent to giving temporary custody to a relative, the petitioner faces a very high burden of proof. In contrast, while it is a serious legal process, guardianship for a developmentally disabled adult typically involves demonstrating a person's disability and needs rather than overcoming parental rights. Finally, guardianship arrangements are also more permanent, often lasting for the rest of a person's life, whereas temporary custody ends once a child reaches adulthood.
How do I know which one suits my situation?
Consult Attorney Lauren Richardson today! She offers free 15-minute phone consultations and can set you up with guidance to move forward on the matter!
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