Trusts / Asset Planning

Guardianship of Children – What Does it Mean?

The idea of guardianship, or being a guardian, is often misunderstood. A guardian of a child is someone to whom the right to make decisions about important matters affecting that child has been given under the Care of Children Act 2004 (the Act). A guardian contributes to a child’s intellectual, emotional, physical, social, cultural and other personal development.

Consultation and decision-making

Guardianship is not the same as having day-to-day care of a child (previously known as custody). A child may or may not live with a guardian, but regardless of living arrangements, guardians must be consulted and agree on important decisions about the child. Important decisions are:

  • where the child lives;
  • what school the child attends;
  • medical treatment;
  • what the child's culture/religion will be; and
  • any change to the child's name.

Where one guardian takes it upon themselves to make important decisions for a child, such as where the child should live or go to school, they are in breach of the other guardian’s rights. All guardianship decisions must be made, where practicable, by joint consultation and agreement between the guardians.

If guardians cannot agree on the best decision for a child, the Family Court can resolve the dispute.

Who is a guardian?

Parents

The mother and father of any child conceived on or after 1 July 2005 are joint guardians of the child if, at any time between the conception and birth of a child, they are married, in a civil union, or living together in a de facto relationship.

The guardianship position for children conceived prior to 1 July 2005 is the same if the parents were married or in a civil union. However, if that was not the case then the mother and father are only joint guardians where they were in a de facto relationship at the time of the child’s birth.

A father who is named as father on a child’s birth certificate on or after 1 July 2005 because he and the child’s mother jointly registered the birth of the child, is also a guardian. The guardianship status of fathers who are appointed by the Family Court or became guardians through the application of previous legislation or court order, is unchanged.

Other Family Members

While mothers and fathers are usually joint guardians, in some other situations a mother will be the sole guardian. Grandparents, wider family members, caregivers, and the Family Court or High Court can also be appointed guardians of a child in certain situations. Where safety is at issue Oranga Tamariki can act as an agent of the Court in relation to guardianship decisions. These arrangements are made through court orders.

Step-parents as additional guardians

If all existing guardians agree, a simple application can be made to a Family Court Registry to appoint a step-parent as an additional guardian. If the existing guardians do not agree an application to the Family Court will be required. The Court will seek and consider the views of all parties before the matter is determined by a Judge, or some other negotiated settlement is reached.

Testamentary Guardians

A person nominated as a guardian in a deceased parent’s will can also apply to the Court to be appointed as a guardian. Their appointment is not automatic. A guardian appointed in these circumstances is known as a “testamentary guardian”. The child will not necessarily live with the testamentary guardian, but the testamentary guardian is entitled to be consulted, have input into, and reach agreement on important decisions about the child.

Can guardianship change?

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.

Legal guardianship rights over a child usually end when the child turns 18, but can end earlier in some situations, or be terminated by court order. A guardian may be appointed for a specific reason, for example, to ensure a medical procedure occurs. Other court appointed guardians may also be appointed for a specified timeframe.

As a child gets older, it can be expected that they will have greater input and autonomy over many decisions that are traditionally made by the guardians of younger children. For this reason, the Family Court will often give increasing weight to an older child’s wishes about such matters as schooling, medical care, residence and religion.

Need more information or help?

The team at Brookfields can provide practical advice and assistance tailored to your specific circumstances about guardianship, consulting and making decisions, or wider queries about childcare. Please let us know how we can help.

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The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.

 

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