Guardianship vs Custody in Washington State: What Changed and Which One You Need

Why the Old Distinction No Longer Applies

If you are searching for the difference between guardianship and custody in Washington state, here is the short answer: Washington eliminated the separate nonparental custody pathway on January 1, 2021. What used to be two different proceedings — custody under Chapter 26.10 RCW and guardianship under the old guardianship statutes — is now one system. Minor guardianship under Chapter 11.130 RCW is the court path for a nonparent seeking appointment as a child's guardian.

The old Chapter 26.10 (Nonparental Custody) is repealed. You cannot file a new nonparental custody petition under that law. Former Chapter 26.10 petition forms cannot start a new case; current Form GDN M 502 is used to change or terminate an existing order under that chapter.

What Replaced Nonparental Custody

The Uniform Guardianship, Conservatorship, and Other Protective Arrangements Act (Chapter 11.130 RCW) took effect January 1, 2021, consolidating the legal authority for nonparents to petition for care of a child. Under this law, a "minor guardianship" gives the guardian authority over a child's daily care, education, and medical decisions — essentially the same practical authority that a nonparental custody order used to provide.

The key differences from the old system:

• Single form series: The GDN M forms (GDN M 102 for the petition, GDN M 103 for the declaration of reasons) replaced the older custody form packets
• Filing fee exemption for relatives: Under RCW 11.130.170, relatives filing for minor guardianship are exempt from the court filing fee
• Mandatory background checks: The court requires both a Washington State Patrol criminal history check and a DCYF child abuse history check before entering a final order
• Court visitor requirements: If the child is 12 or older and unrepresented, or if a parent cannot be served or has waived notice, the court must appoint a neutral court visitor to investigate

What About Existing Custody Orders?

If you already have a nonparental custody order that was entered under Chapter 26.10 before January 1, 2021, your order remains valid and enforceable. You do not need to refile under the new law.

However, if you ever need to modify or terminate that existing order, you must use the current minor guardianship framework. The petition to change or end an old custody order is Form GDN M 502 (Petition to Terminate or Change Minor Guardianship or Non-Parent Custody Order), filed under RCW 11.130.240.

Guardianship vs De Facto Parentage

The other legal option that sometimes gets confused with guardianship is de facto parentage under RCW 26.26A.440. These are fundamentally different:

Minor guardianship appoints you as the child's guardian with caregiving authority. Parents retain their underlying legal status and can petition to modify or end the guardianship. The order expires when the child turns 18.

De facto parentage adjudicates you as a full legal parent with permanent rights and obligations in parity with biological parents. It requires proving seven statutory elements. The designation does not expire, and the parent-child relationship becomes permanent.

Most kinship caregivers pursue guardianship rather than de facto parentage. Guardianship has a clearer procedural path, but the proof tests differ: a minor guardianship based on parental inability or unwillingness requires clear and convincing evidence that no parent is willing or able to exercise parenting functions; de facto parentage requires proof by a preponderance of the evidence on all seven statutory elements.

Which Filing Fits Your Situation

The Washington Guardianship and Custody Court Process Guide walks through the full minor guardianship process — which court to file in, the forms, background checks, notice to parents, and what happens at the hearing.

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