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Guardianship of children

Parents as guardians

Care of Children Act 2004, s 17

A father and mother of a child are usually joint guardians. However, in some situations the mother may be the child’s sole (only) guardian (see below).

Parents are often referred to as “natural” guardians, as opposed to other types of guardians such as “testamentary” guardians (who are appointed in a parent’s will) or court-appointed guardians. (See below, “Other people as guardians”.)

Note: Because parents are usually joint guardians together, this means one parent can’t make important decisions about the child on their own. For example, when parents have split up, one parent can’t simply decide to move with the child to a different city and ignore what the other parent wants. Splitting up doesn’t of itself change anything about the parents’ guardianship roles. Guardianship is a separate issue from arrangements about day-to-day care and contact, and so both parents continue to have a role to play in any important decision, even if, for example, the child lives with one parent all the time (this is “day-to-day care”). If they can’t agree on an important issue, the parents can take the dispute to the Family Court (see below, “Disputes between guardians”).

When will a mother be a sole guardian?

  • Child conceived from July 2005 – The mother is the sole guardian of a child if she wasn’t married to or in a civil union with the child’s father at any point during the pregnancy, and she wasn’t living with him as a de facto partner at any point during the pregnancy.
  • Child conceived before July 2005 – The mother is the sole guardian if she wasn’t married to or in a civil union with the child’s father at any point during the pregnancy, and she wasn’t living with the father as a de facto partner when the child was born.

How can a father become a guardian?

Care of Children Act 2004, s 18

If a child’s father is not a guardian because of the above circumstances, then he can:

  • become a guardian of the child if he and the mother jointly register him as the father as part of the child’s birth information under the Births, Deaths, Marriages, and Relationships Registration Act 1995, or
  • Care of Children Act 2004, s 19

    apply to the Family Court to be appointed as a guardian of the child. The court must appoint the father as a guardian unless it would be against the welfare and best interests of the child.

What happens if the parents’ relationship ends?

Care of Children Act 2004, s 163

The guardianship status of the parents does not change because their relationship ends. Parents continue to be guardians and have the rights and responsibilities of guardians even if they separate, unless a court order says otherwise.

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