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Prisoner's rights

Caring for a child

Guardianship of a child

What is guardianship?

Care of Children Act 2004, ss 15,17

Guardianship of a child means having duties, powers, rights and responsibilities that a parent has for bringing up a child.

If you have guardianship of a child, you will be referred to as their guardian.

The parents of a child are usually joint guardians of the child. Parents are often referred to as natural guardians. However, in some circumstances the birth parent may be the sole guardian of the child.

What are the responsibilities of a guardian?

Care of Children Act 2004, s 16.

A guardian’s responsibilities include contributing to the child’s intellectual, emotional, physical, social, cultural and other personal development, as well as helping to make decisions in a child’s life.

The important decisions guardians make about their child’s upbringing include naming a child, where a child will live, and decisions about a child’s education, religion and medical treatment. This may mean deciding these things on behalf of a child, or if the child is old enough, helping the child make decisions about the important things affecting them.

Am I the guardian of my child?

If you are the parent who gave birth, you are always the guardian of your child.

If your baby was conceived by assisted human reproduction (AHR), different rules apply.

Is the father (other parent) of my child a guardian?

Care of Children Act 2004, ss 17, 18

The other parent is a guardian if you were married, in a civil union, or living together in a de facto relationship any time between when the baby was conceived and when the baby was born.

What is a de facto relationship?

A de facto relationship is where two people who are both over 18 years old live together as a couple but are not married or in a civil union. In some cases, you could be in a de facto relationship before you turn 18.

What if the other parent is not a guardian?

Care of Children Act 2004, ss 18, 19

If a child’s other parent is not a guardian, then they can become a guardian if both of you agree in writing to record them as the other parent on your child’s birth certificate, or if they apply to the court to become a guardian.

What happens if the other parent applies to the court to become a guardian?

Care of Children Act 2004, s 19

The court must appoint them as a guardian if they apply, unless it’s not in the welfare and best interests of the child.

If you think they should not be a guardian it would be up to you to prove that it wouldn’t be in the child’s best interests. For example, if the other parent had been violent or abusive, this may be a reason for them not to be appointed as a guardian.

What happens if the father (other parent) and I split up? Are they still a guardian?

Care of Children Act 2004, s 16

Yes. If the other parent is a natural guardian, or they have been added as guardian by the court or by signing the birth certificate, then they are still a guardian even if you are not together. This means you still need to be able to talk to each other and make the important decision about bringing up your child together.

What happens if guardians disagree with each other?

Care of Children Act 2004, ss 46E,46R

If guardians can’t agree on decisions about a child they can use Family Dispute Resolution (FDR) to try and resolve the disagreement..

If that doesn’t work, you can apply to the court for it to make the decision. The welfare and best interests of the child will guide the court in any decision it makes.

For more information on family dispute resolution see the chapter “Parents, guardians and caregivers” in the Community Law Manual.

Will I stop being the guardian of my child?

Care of Children Act 2004, s 28

You remain a guardian of your child until:

  • your child is 18 years old, or
  • your child get married or enters a civil union, or
  • your child lives with another person in a de facto relationship.

Guardianship also ends if a guardian is removed by the court, but this happens very rarely. For more information, see “When can guardians be removed?” in this section.

Can anyone else be a guardian of my child?

Care of Children Act 2004, ss 23, 27, 31

Usually, the natural biological parents of a child are the child’s guardians. A partner of a parent can be appointed as a guardian if the existing guardians appoint them.

This does not need a court application, although there is some paperwork. If there are two guardians, both guardians must give consent.

For example, if you have a new partner both you and the other parent of your child need to consent to your new partner being appointed as an additional guardian.

Can the court appoint additional guardians?

Care of Children Act 2004, s 27

Yes. Additional guardians can be appointed by the court, a parent, or any other person (such a social worker). In deciding whether to appoint an additional guardian, the court must treat the welfare of the child as the most important consideration.

The court or Oranga Tamariki may sometimes be appointed as a guardian of a child, if the natural guardians are not fulfilling their responsibilities towards the child.

Can my parents be the guardians of my children with me?

Care of Children Act 2004, s 27

Yes, if you want your parents (or grandparents or other whānau, for example) to help you with bringing up your child.

To make this responsibility formal you can apply to the court for them to be appointed as additional guardians. If the child’s other parent is a guardian, they would have to do this too. If they don’t agree, the application would need to go to a full court hearing and the court would decide.

Remember that once your parents are appointed as guardians they will remain guardians, unless there is a very serious reason why they should be removed. This means that, until your child turns 18, you will need to work together to make decisions about your child’s upbringing.

If my child is living with other guardians, do I still have a say in how my child is raised?

Care of Children Act 2004, s 16

Yes. You are still a legal guardian of your child. This means you must be involved in all important decisions concerning your child, even if your child is no longer living with you.

If I have a new partner, can they become a guardian of my child?

Care of Children Act 2004, s 23

In some situations, you may be able to appoint a new spouse or partner as an additional guardian. Your new partner would have to have been sharing the day-to-day care of your child for at least one year. The child’s father would also have to agree to the appointment, even if they are not a guardian.

There are also a number of restrictions that apply. For example, your new partner will not be able to be appointed if they have been involved in court cases about the care of children, or have been an alleged abuser in a family violence case. Alleged means the person has been accused but it has not been legally proven.

There are also restrictions stopping your new partner being appointed if you or your child has been involved in Family Court cases or the child already has an additional guardian.

If you and your partner don’t qualify for this, you can still both apply to the court on the grounds that it is in the child’s welfare and best interests for your partner to be appointed as an additional guardian.

I don’t want the other parent to be a guardian anymore. Can they be removed?

Care of Children Act 2004, s 29

A guardian can only be removed in serious situations and it is only in very rare circumstances that a parent would be removed as a child’s guardian. The parent would also have to be unwilling or unable to be a guardian.

You, a guardian, or a relative of the child can apply to remove a guardian which means they won’t have the same rights and responsibilities towards the child anymore.

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