GUARDIANSHIP UNDER THE CARE OF CHILDREN ACT

If you are looking for a family lawyer Auckland parents trust to explain their legal rights, guardianship is one of the most misunderstood areas of family law. This guide expands on our main article on child custody in New Zealand and explains what guardianship actually means under the Care of Children Act 2004, who holds it, and what happens when guardians cannot agree.

This page is part of a wider series on New Zealand family law. Related topics are covered in the following guides:

• Best Interests of the Child
• Parenting Orders Explained
• Resolving Parenting Disputes
• Safety Concerns and Family Violence
• Relocation Disputes
• The Procedural Roadmap

GUARDIAN ROLES AND RESPONSIBILITIES

Guardianship, set out in section 16 of the Care of Children Act 2004, is the right and responsibility to contribute to a child’s upbringing and to take part in the important decisions that shape their life. This includes decisions about a child’s name, where they live, their schooling, medical treatment, and matters of religion, culture, and language. Guardians must generally be consulted and reach agreement on these decisions, rather than one guardian deciding alone.

Guardianship is entirely separate from day-to-day care, which concerns where a child actually lives and who manages their daily routine. A guardian does not need to live with a child, or even see them regularly, to retain the right to be consulted on major decisions. This distinction surprises many separated mothers and fathers, who sometimes assume that not having day-to-day care means losing a say in their child’s upbringing altogether.

Where one guardian makes a significant decision, such as changing a child’s school or agreeing to a particular medical treatment, without consulting the other guardians, this can amount to a breach of the other guardians’ rights, even if the decision itself was reasonable. The legal requirement is about genuine consultation and joint decision-making, not simply about whether the outcome turns out to be a sensible one.

WHO IS A GUARDIAN

A child’s birth mother is always a guardian. The other parent is usually also automatically a guardian if the couple were married, in a civil union, or living together as a de facto couple at any time between conception and birth. Where an unmarried father does not fall into one of these categories, he is not automatically a guardian, but can become one if he is named on the child’s birth certificate with the mother’s consent, through an agreement between the parents, or by applying to the Family Court.

Guardianship does not depend on the parents’ relationship status and does not end when a relationship does. Both a mother and a father generally remain guardians after separation, regardless of which of them the child lives with day to day, unless a court has specifically removed one of them from that role.

APPOINTING AN ADDITIONAL GUARDIAN

Sections 21 to 23 of the Care of Children Act 2004 allow a parent’s new spouse or partner to be appointed as an additional guardian in certain circumstances, most commonly where they have shared responsibility for the child’s day-to-day care for at least a year. If all existing guardians agree, this can be arranged relatively simply through the Family Court Registry. There are restrictions on this pathway, including where the proposed guardian has previously been a respondent in family violence proceedings, which our guide to safety concerns and family violence explains further.

Appointing an additional guardian does not remove any existing guardian, and the child must also be consulted about the appointment where appropriate. If an existing guardian does not agree, the matter can be taken to the Family Court, which will decide based on the child’s best interests rather than simply the wishes of the adults involved.

COURT-APPOINTED AND TESTAMENTARY GUARDIANS

Under section 27 of the Act, the Family Court can appoint someone other than a parent as a guardian, either alongside existing guardians or as a sole guardian, for any reason and for an unlimited period. This is most commonly used where neither parent is able to care for the child, and the court considers a close family member or other suitable person better placed to take on that responsibility.

A guardian can also be appointed by will, known as a testamentary guardian, to take effect if the appointing parent dies. A testamentary guardian has the same responsibility to be consulted on major decisions as any other guardian, but does not automatically gain the right to provide day-to-day care, and may need to apply to the Family Court to formalise their role, particularly where the child has a surviving parent. This is an important consideration for parents thinking about their wills and estate planning more broadly.

GUARDIANSHIP, PASSPORTS, AND TRAVEL

Guardianship has practical consequences that go well beyond big-picture decisions like schooling or medical care. Applying for a child’s first passport, for example, generally requires the consent of every guardian, not just the parent who has day-to-day care. This is one of the most common ways guardianship disagreements surface in practice, particularly where one parent wants to travel overseas with a child and another guardian is reluctant to agree.

Where a guardian withholds consent unreasonably, or genuinely cannot be located, it is possible to apply to the Family Court for an order allowing a passport application or specific travel to proceed. This issue overlaps closely with the protections covered in our guide to relocation disputes, particularly where overseas travel raises a genuine risk that a child may not be returned to New Zealand as planned.

WHEN GUARDIANS DISAGREE

Because guardians must generally reach agreement on important decisions, disagreements are common, particularly around schooling, medical treatment, and relocation. Where possible, guardians are expected to attempt Family Dispute Resolution first, in the same way parents are expected to try mediation before applying for a parenting order.

Relocation is one of the most frequent guardianship disputes, since moving a child to a new city or country is treated as a major decision requiring the agreement of all guardians rather than a decision one parent can make alone. Our guide to relocation disputes explains how the court resolves this kind of disagreement when mediation does not succeed, applying the same best interests principles that guide every other guardianship decision.

REMOVING OR ENDING GUARDIANSHIP

The Family Court can remove a person’s guardianship under section 29 of the Care of Children Act 2004, but a very serious reason is generally required before a parent is removed as a guardian, reflecting how significant the role is considered to be. The test the court applies is always whether removal would serve the child’s best interests. It is generally more straightforward to remove a testamentary guardian, a court-appointed guardian, or a step-parent appointed as an additional guardian, since these appointments do not carry the same weight as a parent’s guardianship.

Guardianship generally continues until a child turns 18, although it has sometimes been described as a dwindling right, meaning that as a child grows older and more mature, their own views increasingly shape decisions that were previously made for them by their guardians. In rare and extreme cases involving serious risk to a child, the Family Court can also appoint itself as guardian, generally acting through Oranga Tamariki, as explained in our guide to safety concerns and family violence.

Guardianship FAQs