Guardianship

What is guardianship?

A guardian is a person who is responsible for a child’s care, development and upbringing.  That typically includes providing the necessities like a safe and secure home, as well as providing for their mental, emotional, physical, social and cultural development.  Guardians can make decisions about where children live, their education, medical treatment, their culture, language, religion, as well as their names or changes to their names. 

Who can be a guardian?

Parents are often referred to as the ‘natural guardians’ of their children.  A mother who gives birth to a child is automatically regarded as a guardian but the father may only be a guardian in the following situations:

• Regardless of when the child was conceived – if the father was married to, or in a civil union with the mother, any time between conception and birth.
• If the child was conceived before 1 July 2005 – and the father was in a de facto relationship with the mother when the child was born.
• If the child was conceived on or after 1 July 2005 - and the father was in a de facto relationship with the mother at any time between conception and birth.
• If the child was conceived on or after 1 July 2005 – and the father and the mother jointly notified the birth and the father’s name is on the birth certificate.  If the birth was not jointly notified but the father was added to the certificate between 1 July 2005 and 25 January 2009 the father is a guardian if:

• The mother asked for the father to be added at the time the birth was notified, and produced a notice signed by the father acknowledging paternity and consenting to being added or
• If the father asked to be added after the birth was notified and the mother confirmed he was the father.

• The court has appointed or declared the father a guardian.

Recent law requires that both parents of a child sign the application for a birth certificate, so nearly all fathers are guardians.

A parent may appoint a testamentary guardian in their Will.  This person will automatically become a guardian, along with the other surviving parent, if the parent dies.  Testamentary guardians must be at least 20 years old when the parent dies.

The court can also appoint or remove guardians.  For instance if the parents are separated, and one has a new partner who helps care for the children, that new partner may be appointed as a guardian.  This can only happen once.  The easiest way to do this is if both parents consent to the newly-appointed guardian. 

Occasionally it may be necessary to appoint a guardian where the parents are unable to look after the child.  Grandparents, relatives or friends may apply to become a child’s guardian in such situations. 

The court also has the ability to appoint a guardian permanently or for a particular purpose or time.  The court can also appoint itself as a child’s legal guardian.  Usually the court appoints Oranga Tamariki - Ministry for Children - as the court’s agent to act as guardian.  The court also has the power to remove a guardian, including a parent or testamentary guardian if necessary and in the best interest of the child. 

As children get older they are able to make more and more of these decisions for themselves.  When a child turns 18 or gets married, guardianship will come to an end. 

Guardianship disputes

Occasionally guardians do not agree on guardianship decision like where a child should live, or go to school, or whether a child should affiliate with a particular religion.  It is best if guardians can resolve disputes amongst themselves, but if necessary a trained mediator can assist the parties to agree.  A guardianship dispute can be resolved in the court if mediation is not successful. 

For more information about parenting after a separation.