Care of Children Act 2004, s 26

A parent can name a person in their will or deed to be their child’s guardian in case they die. That person automatically becomes a testamentary guardian if the parent dies.

A testamentary guardian becomes a joint guardian with any other guardians. However, the surviving parent or guardian may disagree and challenge this in the Family Court.

Note: Testamentary guardians have the guardianship responsibilities of supporting the child’s development and helping to make the important decisions in a child’s life. However, they don’t have the automatic right to provide day-to-day care for them. If they want to be involved in the child’s day-to-day care, they have to apply to the court.

Care of Children Act 2004, s 27 Children, Young Persons, and Their Families Act 1989, s 110

The Family Court can choose someone other than the child’s parent to be the child’s guardian. This is referred to as a “court-appointed guardian”. The court can do this when someone applies to be a guardian, or they could choose someone when making an order to remove a guardian.

A court-appointed guardian can be appointed as a joint guardian along with any other guardian, or as a sole guardian.

Care of Children Act 2004, ss 4, 27(2)

The court can appoint a guardian for any reason and for an unlimited period of time – for example, if neither parent is able to look after the child.

In some cases the court could appoint the guardian for a particular purpose only – for example, to consent to medical treatment that the child’s parents won’t consent to, like a blood transfusion. Or it may appoint the guardian for a specific period of time – for example, while a parent is overseas, ill or in prison.

The child’s well-being and best interests are the most important factors for the court to look at when deciding whether to appoint a new guardian.

When the court appoints a new guardian, it doesn’t automatically remove any previous guardians.

Care of Children Act 2004, ss 22 – 25

A parent’s new spouse or partner can be appointed as an additional guardian by the Family Court Registrar, without having to go through a court hearing.

This type of appointment can only happen once. Only one of the child’s parents can have their new partner appointed as a guardian. If the parent and new partner appointed as guardian split up, the parent can’t apply to have a future partner appointed as a guardian in this way.

The court won’t appoint a new partner as a guardian if:

• the new spouse or partner:
  • hasn’t yet been sharing the day-to-day care of the child for at least one year, or
  • has been involved in any care of children proceedings in the Family Court or care and protection proceedings in the Family Court, or
  • has had an application made against them for a Protection Order under the Family Violence Act, or
  • has been convicted of an offence involving harm to children.
• the child:
  • has been involved in care and protection proceedings, or
  • has been an applicant or the subject of a Protection Order under the Family Violence Act, or
  • already has a testamentary guardian or a court-appointed guardian.
• the appointing parent (the parent who wants their new partner to be a guardian):
  • has been involved in care and protection proceedings, or
  • has at any time had an application made against them for a Protection Order under the Family Violence Act, including as an “associated respondent,” or
  • has already appointed a partner as an additional guardian for the child, or
  • has had the guardianship of the child removed by the court.

For information about care and protection proceedings, see: “Dealing with Oranga Tamariki / Ministry for Children”.

For information about Protection Orders and associated respondents under the Family Violence Act, see: “Family violence and elder abuse”.

Care of Children Act 2004, ss 21, 23

If both parents are alive, whether or not they are both guardians of the child, they have to agree to the new partner being chosen as an additional guardian. If the child has any additional guardians, they must also agree to the appointment. The child must also be consulted about the new partner being appointed a guardian.

If the other parent doesn’t agree, you can ask the Family Court to appoint the new partner as a guardian. The other parent will be able to respond and might ask the court not to make the appointment. A judge will make the decision for or against.

There is a special form to request a new partner become a guardian, and usually both parents and the new partner must sign the form. The form must also include:

• statutory declarations from the parent or parents and the new partner, and
• a copy of the new partner’s criminal record.

You can find the forms on the Ministry of Justice website, here (or go to: www.justice.govt.nz and search: “How to apply to appoint or remove a guardian”). You can also find information on how to get a copy of your criminal record at www.justice.govt.nz/criminal-records.

Care of Children Act 2004, ss 30–35

In some situations, the High Court or Family Court will appoint itself to be a child’s guardian. In these cases, the court will probably appoint Oranga Tamariki / Ministry for Children to act on its behalf.

The people who can apply for a child to be placed under the court’s guardianship are:

• a parent or guardian of the child
• a grandparent, aunt, or uncle of the child
• a sibling (including a half-sibling) of the child
• a spouse or partner of a parent of the child
• the child themselves
• Oranga Tamariki / Ministry for Children
• any other person that the court says can apply.

When the court becomes the guardian of a child, the court takes priority over the rights of existing guardians.