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This article is focused on New Zealand law and explains issues from a Common law perspective.
How to - Guardianship within New Zealand
What is guardianship?
If you are a guardian of a child this means you have the following responsibilities:
- providing day-to-day care for the child, which means the child lives with you on a daily basis, and you are responsible for everyday things, like making sure they are safe, warm and properly fed, deciding what time they go to bed, and seeing that they get to school on time each day.
- contributing to the child's personal development, including their intellectual, emotional, physical, social and cultural development
- helping them make important decisions, such as:
- where they live
- where they go to school
- major medical treatment
- what their culture, language and religion will be
- any changes to their name.
Guardianship and day-to-day care
Not every guardian has the role of providing day-to-day care. Guardians appointed by a parent in their will do not have this role (they are called "testamentary guardians" - see below). Also, parents who are guardians can agree, or the Family Court may order, that only one of them will have day-to-day care. For more information about court orders for day-to-day care, see How to apply for a parenting order for day-to-day care (custody) of a child.
Guardianship is governed by the CARE OF CHILDREN ACT 2004,
Different types of guardianship
There are a number of different types of guardians:
- natural guardians (the parents)
- testamentary guardians
- new partners appointed as guardians by the parents
- court-appointed guardians
- guardianship of the court
These are all explained below.
Both parents are usually guardians. They are often described as "natural" guardians. A mother is automatically a guardian. However, the father is automatically a guardian only if -
- he was married to, or in a civil union with, the child's mother at any time from when the child was conceived until it was born
- the child was conceived before 1 July 2005 and he was living with the child's mother when the child was born
- the child was conceived on or after 1 July 2005 and he was living with the child's mother at any time between conception and the birth, or
- he was recorded as the father of the child on the birth certificate on or after 1 July 2005
If the father is automatically a guardian, he can ask the court to officially declare this. He might want to do this if, for example, he and the mother have split up and the mother doesn't want him to have any role in the children's life.
If the father is not automatically a guardian, he can apply to the court for it to appoint him as a guardian. The court is likely to do this unless it is against the child's best interests.
Parents continue to be guardians even if they split up. If they agree, or the court orders, that only one of them will have day-to-day care, the other parent continues to have the other responsibilities of guardianship - namely, contributing to their child's personal development and helping them make the big decisions in their life.
A guardian can also, in a will or deed, appoint someone else to be a guardian after he or she dies. The new guardian is called a "testamentary" guardian.
A testamentary guardian becomes a joint guardian with any other guardians. But a surviving parent or guardian can challenge the appointment in court.
A testamentary guardian does not have the role of providing day-to-day care for the child. However, they can apply to the Court for a parenting order that gives them day-to-day care.
New partners who are appointed as guardians
If a parent has a new partner who has been sharing day-to-day care of the children for at least a year, the parent may be able to appoint the new partner as a guardian of the children. The parent and the new partner may be married, in a civil union or in a de facto relationship. If the other parent of the children is alive, then both parents must make the appointment.
This is a new provision that was introduced by the Care of Children Act 2004 on 1 July 2005. The Act lists a number of restrictions that may prevent parents appointing a new partner as guardian in any particular case - for example, it can't be done if the new partner has ever been involved in Family Court proceedings over day-to-day care (custody) or contact (access), or had a domestic violence protection order made against them. There are a number of these restrictions, some also relating to the child and to the parent making the appointment. For more details, see the Family Court website at www.justice.govt.nz/family.
There is a special form for the appointment. A Family Court Registrar will check that the appointment form is in order. The Registrar must be satisfied that the proper information has been provided, that the paper-work has been done correctly, and that none of the restrictions that may prevent an appointment apply.
If the new partner cannot be appointed a guardian because of any of the restrictions contained in the Care of Children Act, they can apply to the Family Court for the court to make the appointment instead.
Guardians can also be appointed by the Family Court. This can be done when a special application is made for this purpose, or when the court exercises its power to remove a guardian (see "When does guardianship end?" below). The court can appoint the person either as sole guardian or in addition to other guardians.
The court might appoint a guardian for a variety of reasons - for example, if the parents die and no guardians have been appointed. It can also appoint a guardian for a particular purpose or for a limited period of time - for example, if both parents are going to be away for a period or if neither parent is able to look after the child for a period.
In deciding whether to appoint a guardian, the court always treats the welfare and best interests of the child as the first and most important consideration.
There is no legal limit to the number of guardians that a child can have, although for practical reasons the number should be kept to a minimum.
Guardianship of the court
Court guardianship is a special form of guardianship in which the Family Court or High Court becomes the child's guardian and displaces the parents (or other guardians) from that role. For more information on this, see How to obtain an order placing a child under court guardianship.
When does guardianship end?
Guardianship automatically ends when a person:
- turns 18, or
- marries or enters into a civil union or de facto relationship (if the child is 16 or 17 they need to get written permission from their guardian before they can do this)
This doesn't mean that parents have an unlimited right to make decisions for their children until guardianship ends. The law recognises that, as young people approach adulthood, they become increasingly entitled to make decisions for themselves, depending on the particular issue and on their age, maturity and level of understanding.
A Family Court can also deprive a parent of guardianship or remove a testamentary or court-appointed guardian. The following people can apply to the court for it to do this -
- a parent or guardian of the child
- a partner of a parent of the child (whether they are married, in a civil union or in a de facto relationship), if they have been sharing day-to-day care of the child
- a grandparent or aunt or uncle of the child, and
- a brother or sister of the child, including half-brothers and half-sisters.
The court won't deprive a parent of guardianship unless it is satisfied either that the parent is for some grave reason unfit to be guardian or that they are unwilling to be a guardian. In deciding whether to remove a testamentary or court-appointed guardians, the only issue for the court is the child's welfare and best interests.
Disputes between guardians
If joint guardians are unable to agree on an issue, any of them can ask the Family Court to arrange counselling for them, so that they can try to sort out the dispute themselves. The counselling is free and confidential.
If counselling doesn't resolve the dispute, they can apply to a Family Court for directions. The court can then make any order that it thinks proper, and will be guided by what is in the best interests of the child. The child must be given a reasonable chance to say what he or she thinks. The court must then take the child's views into account.
What can a child do if they disagree with a guardian's decision?
A child who is 16 or older can ask the Family Court to intervene if the child is unhappy about an important decision that their guardian or guardians have made. For example, a guardian may have refused to let the child get married or enter into a civil union or de facto relationship. In that case the child can ask the Family Court to give its permission, which would then overrule the guardian's decision.
The Family Court may also appoint a welfare guardian for any person who is totally unable to communicate decisions or understand decisions about his or her personal care and welfare (see How to: Welfare guardians).
- If you wish to apply to the court to be appointed a guardian or if an application has been made to the court to deprive you of guardianship, you should obtain legal advice.
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