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Family law

Guardianship of children

Other people as guardians

In some situations, people other than a child’s parents can become guardians of a child. These situations are explained below.

Testamentary guardians

What is a testamentary guardian?

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.

Court-appointed guardians

When can the Family Court appoint a guardian?

Care of Children Act 2004, s 27

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 a sole guardian.

Children, Young Persons, and Their Families Act 1989, s 110

Appointing a new guardian if there are care and protection issues

The Family Court can also appoint a new guardian when it has made an order that a child needs care or protection (a care and protection declaration).

The court can appoint an organisation as the new guardian for example, Oranga Tamariki / Ministry for Children, or it could be a child and family support service like Barnados or an iwi social service. They could also choose to an individual person. For more information on care and protection issues, see the chapter “Dealing with Oranga Tamariki / Ministry for Children”

Why will the court appoint a new 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.

A new spouse or partner as a guardian

When can a new spouse or partner become an additional guardian?

Care of Children Act 2004, ss 23 – 25

A parent’s new spouse or partner can be appointed (chosen) 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 new spouse or partner can only be appointed if they have:

  • been sharing the day-to-day care of the child for at least one year, and
  • never been involved in any care of children proceedings in the Family Court or care and protection proceedings in the Family Court, see the chapter “Dealing with Oranga Tamariki / Ministry for Children”, and
  • never had an application made against them for a Protection Order under the Family Violence Act, see the chapter “Family violence and elder abuse”, and
  • never been convicted of an offence involving harm to children.

Other rules on choosing a new partner as an additional guardian

Care of Children Act 2004, s 22

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

The court won’t appoint a new partner as a guardian if the appointing parent (the parent who wants their new partner to be a guardian):

  • has been involved in care and protection proceedings, see the chapter “Dealing with Oranga Tamariki / Ministry for Children”, 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”, see the chapter “Family violence and elder abuse” – this also explains what an “associated respondent” is, 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.

Who has a say in whether an additional guardian is appointed?

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.

How do I apply for a new partner to become a guardian?

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 get these from the Ministry of Justice).

You can find the forms on the Ministry of Justice website, www.justice.govt.nz by searching “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

The court as guardian

High Court or Family Court can appoint itself as a guardian

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 it’s 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.

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Parents, guardians and caregivers

Where to go for more support

Community Law

www.communitylaw.org.nz

Your local Community Law Centre can provide initial free legal advice and information.

Oranga Tamariki / Ministry for Children

www.orangatamariki.govt.nz/adoption/adopting-in-nz

Phone: 0508 FAMILY (0508 326 459)
Email: enquiry@ot.govt.nz

This web page has information about the adoption process.

Family Court

www.justice.govt.nz/family

The Family Court website includes information on the topics in this chapter.

Family Court fee waiver forms

www.justice.govt.nz/courts/going-to-court/court-fees/apply-for-help-to-pay-court-fees

Department of Internal Affairs

www.govt.nz/browse/family-and-whanau/adoption-and-fostering/finding-your-birth-parents

This DIA webpage has information on how to obtain original birth certificates for adopted children.

Parents can now register their baby’s birth online at: www.smartstart.services.govt.nz/register-my-baby

“What happens to your children when you part?” (pamphlet)

www.lawsociety.org.nz/for-the-public/common-legal-issues/what-happens-to-your-children-when-you-part
Phone: (04) 472 7837
Email: pamphlets@lawsociety.org.nz

This New Zealand Law Society pamphlet covers guardianship, care of and contact with children, how disputes are resolved, and other child-focused issues. Access the pamphlet online or order hardcopies from the New Zealand Law Society.

Inland Revenue

www.ird.govt.nz/childsupport

Phone: 0800 221 221

Inland Revenue’s Child Support webpage has a wide range of forms and guides for parents and caregivers.

Alternative dispute resolution

www.resolution.institute – Resolution Institute is a community of mediators, arbitrators, adjudicators, restorative justice practitioners and other DR professionals.

www.aminz.org.nz – AMINZ (Arbitrators and Mediators Institute of New Zealand).

There are many kinds of “alternative dispute resolution” that, depending on your personal situation, may be cheaper and more successful than going to the Family Court. These include counselling, mediation and negotiation. You can find out more at the above websites

Aotearoa New Zealand Association of Supervised Contact Services

www.anzascs.org.nz

The ANZASCS website has information about organisations that are approved as providers of supervised contact services.

“Pregnancy Rights: Your legal options before and after pregnancy” booklet

www.communitylaw.org.nz

This booklet contains practical answers to questions about pregnancy and the law, and includes information on sexual health and consent, options after a positive pregnancy test, healthcare, education, housing and more.

Order hard copies from:
Community Law Wellington and Hutt Valley
Phone: (04) 499 2928

Email: publications@wclc.org.nz or visit www.communitylaw.org.nz to buy a copy or access free online.

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