There are some situations where a non-parent may wish to apply to be the guardian of a child. A guardian is a person that has the responsibility of a child’s care and upbringing. You can find out more about guardianship rights and responsibilities here.

A non-parent guardian can be anyone that is not the mother or father of a child. For example, a grandparent, sibling, aunty or uncle, or foster parent.

Non-parent guardians must be appointed by the Court, unless they are a testamentary guardian. A testamentary guardian is a person that has been appointed as a guardian in a parent’s Will. In that case, the person automatically becomes the child’s guardian upon the death of the parent.  

Other non-parent guardians usually have to apply to the Family Court for appointment. The Court can appoint the non-parent guardian either as a joint or sole guardian of the child. A child can have more than two guardians. For example, there have been cases where a child has had both their parents and their grandparents as legal guardians.

The benefit of applying to be a child’s guardian is that you can have a say in decisions relating to health, education, religion and more. General carers do not have the final say in such decisions.

The overarching principle when appointing a guardian is the child’s best interests and welfare. When determining this, the Court will consider the child’s safety, the importance of the parent’s role in the child’s life, continuity of care and the child’s relationship with their parents and wider family.

You must be over 18 to be appointed as a guardian of a child.

New partners

The new partner of a parent can apply to be the guardian of a child, but only for one of the parents’ new partners. Both parents cannot apply to have their partners appointed as a guardian, and if a new partner of a parent is appointed as a guardian, the parent cannot later apply to have another partner appointed as a guardian.

If both parents agree on the new partner becoming a guardian, a Court Registrar can handle the application without the need for a Judge to get involved. If parents cannot agree, the application must go through the Court. For a new partner to be appointed, they also must have been sharing day-to-day care of the child for at least one year.

The Court can be reluctant to appoint additional guardians where a child already has two guardians. This is because it becomes more difficult for guardians to agree on matters relating to the child, such as health and education, if there are more than two guardians. This is especially the case if the new partner has played a role in the breakdown of the relationship between the child’s parents.

Grandparents and other relatives

Grandparents and other relatives can also apply to the Court to be appointed the guardian of a child. If the application is to be an additional guardian, the Court will consider the relationship between the relatives and current guardians of the child and decide based on what is best for the child.

The Court may deny an application by a relative if there is animosity between the applicant and current guardians, because there is a risk of complications in terms of care arrangements which may affect the decision-making regarding the child. However, the role of grandparents in the care and upbringing of a child is well recognised by the courts.

Foster parents

Foster parents also have a right to apply for the guardianship of a child. These applications are commonly supported by Oranga Tamariki or the agency responsible for the foster placement.

Other guardians

Other persons that are not related, to but have shared care of, the child can apply to be appointed as a guardian.

In one case, the Court appointed a person that had cared for the child as a father, but was not biologically related to the child. This was because the applicant had shared care of the child for many years. The biological father of the child had never played a role in the child’s life, and the Court decided that the applicant should be given guardianship because he essentially filled this role.

Guardian appointments are an important aspect of a child’s life. If you are confused about the process of becoming a guardian, it pays to seek advice from a professional with experience in the 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 and Hunter Flanagan-Connors