The Care of Children Act 2004 sets out how decisions should be made regarding the day-to-day care and guardianship of children when their parents separate. The Act makes the welfare of the child the top priority.
What are the responsibilities of a guardian?
As a child’s guardian, you would be responsible for the child as though you were his parent, that is:
- providing day-to-day care of the child
- helping the child to develop and learn about their culture, make friends, and learn to make their way in the world
- making major decisions about the child’s life e.g. where they live, which school they attend, major medical decisions
Not every guardian has responsibility for day to day care; in particular the responsibilities of a testamentary guardian are a little different.
Who can be a child’s guardian?
The guardians of a child can be:
- the natural mother and father of a child (the mother is automatically a guardian of the child, the father's guardianship depends on whether he was married to or living with the mother around the time of the child's conception and birth, and whether his name is on the birth certificate. Check the Ministry of Justice website for more details)
- someone appointed by another guardian to take over if he or she dies (this person is called a testamentary guardian)
- the new partner of a parent, by application to the Family Court
- someone appointed by the Family Court
- the Family Court, in some cases.
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When does the guardianship of a child end?
It ends when the child turns 18 years of age, or enters into marriage, civil union or a de facto relationship. It may also end if the guardian is removed by the Family Court, or if the guardian was appointed only for a limited period of time (and the period ends) or a specific purpose (and the purpose is achieved).
A child’s natural guardian (their parents) can have their guardianship role removed if the parent doesn’t want to be a guardian or if the Family Court decides either that they are unfit to be a guardian, or removal is in the child’s best interests.
Guardianship is generally regarded as a dwindling right, because the views of the child become more important as the child gains in age and maturity.
How do I make my new partner a guardian of my child?
You can apply to the Family Court if you want your new partner to be a guardian of your child. It will only be approved if:
- the new partner has been sharing day-to-day care of the child for at least one year
- both parents agree to it (unless the other parent is deceased)
- the child and one of the parents is a New Zealand citizen or normally lives in New Zealand
- you have tried to find out what the child thinks, and taken account of those views
If your new partner is appointed guardian of your child, you won’t be able to apply for any future partner to be appointed as guardian (e.g. if your relationship ends). There are other restrictions relating to the appointment of a new partner as the guardian of a child. You can read about them on the Community Law website.
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I’m looking after my grandchild because his parents can’t – how do I apply for guardianship of the child?
You can apply to the Family Court to be appointed a guardian of your grandchild. The Family Court may decide to appoint you as a joint guardian (along with the parents or the Court), or they may decide to appoint someone else.
You could also ask the Family Court to take away the parent’s guardianship, for example if you can show that the parents are not fit to be a guardian. In general the Family Court will have to be convinced that there is a very serious reason before a parent is removed as a guardian.
More information about applying for guardianship (or removing a guardian) is on the Ministry of Justice website.
You may find useful information for your situation, including support groups, on the Grandparents Raising Grandchildren website.
If anything happens to me, I’d like my brother to look after my children. What should I do to make sure this happens?
You can appoint someone in your will, who will take over if you die when your children are still aged less than 18 years; this person is called a ‘testamentary guardian'. The person you appoint as testamentary guardian must be at least 20 years of age at the time of the parent’s death.
If the other parent is also a guardian of the children and is still alive, then on the event of your death the testamentary guardian would share guardianship with the other parent.
The testamentary guardian’s role doesn’t include the day-to-day care of the child, but they can make major decisions about how the children are brought up. They can also apply to the Family Court for a parenting order if they want to have, or share, day to day care of the children.
If the other parent disagrees with your decision about who should be the testamentary guardian, they are entitled to apply to the Family court to remove that person or appoint someone else instead. They would have to show that it’s in the children’s best interest to do so.
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How can a child's guardians sort out their disagreement over the child's care?
If there is a dispute between guardians (e.g. between a testamentary guardian and a surviving parent) then either party can apply for Family Dispute Resolution mediation. More information about sorting out day-to-day care arrangements for children is on our Care of children disputes - first steps page.
If mediation is not suitable, or has not succeeded in helping the guardians come to an agreement, then either party can apply to the Family Court for a decision. More about this is on our Care of children disputes - going to court page.
What can I do as a 16 year old who disagrees with my guardian’s decisions about me?
If you disagree with a decision your guardian has made about you and you are aged 16 years or older, you can ask the Family Court to decide whether the guardian’s decision can be overruled.
From the age of 16 years, you also have the right to make decisions about your medical treatment (e.g. an operation), including refusing medical treatment. A female of any age can legally consent to or refuse to have an abortion.