What is a Guardian? Understanding Guardianship for Children

18 June, 2015 | Smith and Partners

Who can be a guardian?

Legal guardians are the people who are responsible for making decisions for a particular child. The people who are on the child’s birth certificate are the guardians of that child; accordingly, all biological mothers and most fathers automatically become guardians upon the birth of the child. A father will also be a guardian if he was married to or living with the mother at a time from conception until the birth of the child.

Guardianship can also be conferred on a person by way of adoption or being appointed as an additional guardian by the Court (for example, a step-parent or other significant person in a child’s life).

Mixed families

If both of the child’s parents are guardians and the parents separate, they will both still be the guardians of the child even if they live separately. This is regardless of who the child lives with.

If a step-parent or other person seeks to be appointed as an additional guardian of a child, we advise that you call us to discuss your situation.

The roles of guardians

Guardians are responsible for making decisions regarding the child’s care, development and upbringing (i.e. all decisions which parents have to make).
If the child has more than one guardian, the guardians are encouraged to make important decisions regarding the child, jointly. Guardians are expected to consult with the child in the decision making process. Examples of such decisions include:

• Education – e.g. where the child should attend school;
• Health Care – e.g. what medical treatment to receive;
• Protection of the child – e.g. who is to care for the child;
• Identity – e.g. what languages the child shall speak, what religious beliefs the child should have and/or what cultural commitments the child should attend;
• Name – e.g. any changes made to the child’s name. 

What happens when a guardian dies?

When a guardian dies, if they have not named a testamentary guardian (a person named in their Will or other deed, to be a guardian), or if someone is not satisfied with the person named as a testamentary guardian, then a person can apply to the Family Court to be appointed as a guardian of the child.

A testamentary guardian’s role is similar to those of a normal guardian, except they do not necessarily provide the role of caring for the child on a day-to-day basis. If you wish to know more about testamentary guardianship, please contact us.

Would you like to be appointed guardian of a child? Are you having issues with your child’s other guardian?

If you would like to become a client of Smith and Partners and get help with your guardianship issue, please contact our Guardianship Lawyers on 09 836 0939 or email partners@smithpartners.co.nz to set up an appointment to discuss your child custody matter.

We will require a retainer to be paid prior to your first meeting, and we cannot assist with legal aid matters.

Please note that In accordance with our obligations under the Lawyers and Conveyancers Act 2006, we cannot provide legal advice unless you have become a client of Smith and Partners and have received our Terms & Conditions of Engagement and Info for Clients.