When can a parent of a child be removed as their guardian?

In some circumstances a parent may be unwilling or unfit to perform their duties and responsibilities as guardian of their child. If this is harming the child, or it is not in the best interests of the child, the court may remove the parent as a guardian.

What is a guardian?

Guardians have all the duties, powers, rights, and responsibilities that are associated with the upbringing of a child. This includes providing day to day care of the child, contributing to their development, and making important decisions on matters affecting the child. Usually the mother and father of a child will both be guardians. In some circumstances additional guardians may be appointed, such as other family members of the children.

When can guardians be removed?

The court may remove a parent as a guardian if it is satisfied that the removal is in the best interests and welfare of the child. The parent who is being removed must also be unwilling to perform their guardianship duties and responsibilities, or the parent must be unfit to be a guardian of the child for a very serious reason.

A parent or close family member may apply for a guardian to be removed, or the unwilling or unable parent can apply to have their guardianship duties and responsibilities removed.

If a parent of a child is unwilling to perform their guardianship duties and responsibilities, then they may be removed as a guardian. There needs to be more than an inability to perform the role, there needs to be a lack of intent or desire to fulfil the guardianship role. This unwillingness must be harmful to the child and detrimental to the child’s welfare and best interests.

If a parent is unsuitable to be a guardian for a very serious reason, then the court may remove the guardianship status from the parent. The reason must be more than minor issues with the parent or behaviour that is unlikely to significantly impact the child.  

Parents may be considered to be unfit to be a guardian if:

•          they have seriously abused their child or another child;
•          they have serious criminal convictions and they cannot fulfil their guardianship responsibilities due to               their imprisonment;
•          they have been seriously violent towards the other parent; or
•          they have a serious mental illness or other disability that negatively impacts the child and their removal           would be in the best interests of the child.

If the removal of a parent as guardian would not be in the best interests of the child, the court will refuse to make the order. When assessing whether the removal of a guardian is in the child’s best interests, the court must consider factors like the child’s safety, continuity of their care, and the child’s identity (among other factors).

It is important to note that satisfying the grounds for removing a parent’s guardianship duties and responsibilities is a difficult test to meet, so it pays to speak to a professional experienced in this area.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Gianna Menzies