The term “guardian” is well-known, but less well-known is who is a guardian, what it means and when guardianship rights end.
The Care of Children Act 2004 says guardianship of a child means having all duties, powers, rights and responsibilities that a parent of the child has in relation to the upbringing of the child. As well as providing day to day care, the responsibilities of guardians include helping make or helping the child make important decisions about their name and where they live as well as medical treatment, education and child’s culture, language and religion.
The mother and father of the child are usually joint guardians. In some situations the mother may be sole guardian of the child.
This is a little technical and depends on the mother’s relationship with the father from the period of conception up to and including the time the child was born. Section 17 of the Act sets out the circumstances where the mother will be the sole guardian.
Currently both parents of a child must notify the Registrar of Births, Deaths and Marriages, of the birth of the child, so nearly all fathers are guardians. Different rules apply for births not jointly notified and where the father was added to the birth certificate between July 1, 2005 and January 25, 2009. If not a guardian, the father of the child can apply to the court to be appointed as one. The court must appoint the father in this situation, unless it is against the welfare and best interests of the child.
Other people may apply to be appointed guardians too. Testamentary guardians are appointed by will or deed of a parent of the child, and this appointment is automatic when the parent dies. Guardianship in this situation does not give the testamentary guardian an automatic right to provide day to day care for the child. The Family Court may appoint an additional guardian or guardians. The court may do this when someone else applies to be the child's additional guardian or on its own initiative, for example when making an order to remove a guardian.
A court-appointed guardian may be for an indefinite period and for all purposes. Alternatively a court may appoint a guardian for a particular purpose, for example to consent to medical treatment of a child that the child's parents will not consent to, or for a specific period of time. The Family Court may also appoint itself as guardian.
Just as the Family Court can appoint guardians, it can also remove them although it is rare. Parents continue as guardians of the child and must agree on guardianship matters even when the parents are separated. Guardianship formally ends when the child turns 18, enters into a civil union or lives with someone as a defacto partner. As the child gets older their views become increasingly important and carry more weight so the guardian's rights to make decisions for that child decrease, even though guardianship may not have legally ended.
Community Law Marlborough can help if you have questions about guardianship. Drop in to 14 Market Street | Blenheim or call 03 577 9919 or 0800 266 529 to make an appointment.