Guardianship is a fundamental concept in New Zealand family law, encompassing the rights, duties, powers, and responsibilities that come with raising a child. The Care of Children Act 2004 is the primary legislation governing guardianship in New Zealand
Under section 15 of the Care of Children Act 2004, guardianship is defined as having “all duties, powers, rights, and responsibilities that a parent of the child has in relation to the upbringing of the child”[3]. This includes making important decisions about the child’s care, development, and upbringing.
Who is a guardian
In New Zealand, guardianship is not limited to a child’s biological parents. The following individuals can become guardians:
1. Biological parents: The child’s birth mother is automatically a guardian. The father is automatically a guardian if he is named on the birth certificate or meets certain criteria, such as being married to or in a civil union with the mother during her pregnancy
2. Court-appointed guardians: The Family Court can appoint additional guardians if it’s in the child’s best interests
3. Testamentary guardians: A parent can name someone as a testamentary guardian in their will or by deed, who will become a guardian upon the parent’s death
4. The Court itself: In some cases, the Family Court can appoint itself as a child’s legal guardian, usually with Oranga Tamariki acting as its agent
Responsibilities of guardians
Section 16 of the Care of Children Act 2004 outlines the responsibilities of guardians, which include:
– Providing day-to-day care for the child
– Supporting the child’s development in various aspects (intellectual, emotional, physical, social, cultural, and other personal development)
– Making or helping the child make important decisions about their life, such as name changes, living arrangements, medical treatment, education, and cultural upbringing[1][3]
Guardianship decisions
Guardianship decisions are those that significantly affect the child’s life. These include:
– Where and with whom the child will live
– Medical treatment decisions
– Education choices
– Cultural, language, and religious upbringing
When guardians disagree on these matters, they may need to seek resolution through the Family Court
Appointing additional guardians
In some cases, additional guardians may be appointed. For example, a parent’s new spouse or partner can be appointed as an additional guardian by the Family Court Registrar, provided certain conditions are met:
– The new partner has been sharing day-to-day care of the child for at least one year
– There are no previous care of children proceedings or protection orders involving the new partner
– The child has not been involved in care and protection proceedings
– Both parents (if alive) and any existing additional guardians agree to the appointment
– The child is consulted about the appointment
Court-appointed guardianship
The Family Court can appoint guardians if it’s in the child’s best interests. This can happen even if no application has been made. The court considers various factors when making this decision, including the child’s welfare and best interests, which are paramount under section 4 of the Care of Children Act 2004
Case law on guardianship
New Zealand courts have provided guidance on various aspects of guardianship through case law. For example:
1. In B v K [2010] NZCA 96, the Court of Appeal emphasized that guardianship decisions should be made jointly by all guardians, and unilateral decision-making is generally not appropriate.
2. K v G [2015] NZHC 1347 highlighted that the welfare and best interests of the child are paramount in guardianship disputes, and courts should consider the child’s views when making decisions.
3. Re T (Guardianship: Custody) [2000] NZFLR 886 established that guardianship rights continue even when a parent does not have day-to-day care of the child.
Termination of guardianship
Guardianship typically ends when the child turns 18 or marries or enters a civil union before that age. However, the court can also remove a guardian if it’s in the child’s best interests
FAQ
Can a step-parent become a guardian?
A: Yes, a step-parent can apply to the Family Court to be appointed as an additional guardian, provided certain conditions are met and all existing guardians agree
Do both parents have equal guardianship rights
A: Generally, yes. Both parents who are guardians have equal rights and responsibilities, regardless of their relationship status or living arrangements
What happens to guardianship if parents separate
A: Guardianship rights continue even if parents separate. Both parents remain guardians and should continue to make important decisions about the child together.
Can a guardian be removed?
A: Yes, the Family Court can remove a guardian if it’s in the child’s best interests. However, this is relatively uncommon for natural guardians (parents)
How are guardianship disputes resolved
A: Guardians are encouraged to resolve disputes through mediation or Family Dispute Resolution. If an agreement can’t be reached, the Family Court can make a decision
Can a child have more than two guardians?
A: Yes, a child can have multiple guardians, including parents and court-appointed guardians
What is the difference between guardianship and day-to-day care?
A: Guardianship involves making important decisions about a child’s upbringing, while day-to-day care (formerly called custody) refers to the daily care and living arrangements of the child
Can grandparents apply for guardianship?
A: Yes, grandparents can apply to the Family Court to be appointed as additional guardians if it’s in the child’s best interests
What happens to guardianship if a parent dies?
A: If a parent who was a guardian dies, their guardianship ends. If they named a testamentary guardian in their will, that person may become a guardian
Can a child challenge guardianship decisions?
A: While children don’t have the legal authority to challenge guardianship decisions directly, the court is required to take their views into account when making decisions that affect them, as per section 6 of the Care of Children Act 2004.
If you need further guidance on changing a parenting order, it’s advisable to consult a family law specialist like Naomi Cramer who can provide tailored advice based on your situation.
