Are you the Guardian of your child?

Relationships (Family)

Generally if you are your child's biological parent then you are their guardian - but sometimes there are more complicated circumstances which apply and guardians have to be appointed by the Court.

Generally the biological parents of a child are joint guardians. However a mother may be a sole guardian if she was not married to, or in a civil union or de facto relationship with, the father of the child at any time between the child’s conception and birth.

A father who is registered on the birth certificate becomes a guardian provided his particulars are registered because both he and the mother have notified the birth as required by section 9 of the Births, Deaths, Marriage and Relationships Act 1995.

How else can you become a guardian?

If a father is not automatically a guardian he can apply to the Court to be appointed as one. Generally the Family Court must appoint the father as a guardian unless it would be contrary to the child’s welfare and best interests.

Other people, for instance step parents, might seek appointment through the Court. For any person to be appointed the existing guardians must agree to the appointment. Even if the father of the child is not a guardian he must agree to the appointment as well.  If the existing guardians do not agree to the appointment the Court could still appoint an additional guardian if they think it is in the best interest of the child to do so.

The Court could also appoint another person as an additional guardian for the child. It could be for a specific purpose or period and it could be subject to limitations. This could happen where the natural parents have died and the person who has assumed responsibility for bringing up the child wishes to become their legal guardian, or perhaps where a child has been in long term foster care.

The welfare and best interest of the child are the first and paramount consideration for the Court in any application.

Restrictions on appointment of step parents

There are conditions on the appointment of a step parent as an additional guardian. For instance they must actually have been sharing the responsibility of the child’s day to day care for not less than a year. They must also not have been involved in proceedings under the Care of Children Act 2004, or generally in proceedings that involve child safety issues, domestic violence or certain criminal offences.

Other ways to appoint an additional guardian.

The other way in which guardians can be appointed is by Will, or deed, by the parents. These are known as testamentary guardians, and the appointment only becomes effective on the death of the appointer.

Guardianship lasts until 18, although as the child matures they are expected to be making more decisions for themselves with guidance from the guardians. If concerns exist as to the child’s ability to make decisions for themselves at 18, then it may be appropriate that applications are made under the Protection of Personal and Property Rights Act for the appointment of a property manager and welfare guardian. However it is not enough that the child might make decisions that you would disagree with or would see as unwise, for the Court to interfere in their right to make their own decisions.

If you have any questions regarding guardianship, please feel free to contact Penny Henderson in our Relationships Team on 03 339 5620

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Copyright © Cavell Leitch. All rights reserved. Redistribution is only permitted with express written permission. For enquiries please contact us. This article by its nature cannot be comprehensive and cannot be relied on by clients as advice. It is provided to assist clients to identify legal issues on which they should seek legal advice. Please consult the professional staff of Cavell Leitch for advice specific to your situation.