Guardianship

Raising someone else's child

A short overview on guardianship

The New Zealand legal system mainly provides two alternatives to raise another woman's child: guardianship and adoption. Both secure a certain level of responsibility for the child and security for the newly formed family. Still, each procedure has advantages and disadvantages and the particular situation should be evaluated closely before choosing one way or another.

Guardianship

The Scope

The scope of guardianship evolved from the right of control to a more child-related definition: Guardianship now is having all duties, powers, rights and responsibilities which a parent has in relation to the upbringing of the child.

That includes:

Day-to-day care for the child, e.g. arrangements for a safe home or for school
Contributing to the child's intellectual, emotional, physical, social and cultural development
Helping the child to determine questions about important matters
Such could be questions like where the child lives or goes to school, matters of culture, religion and language, which is especially important for Maori

For exercising these responsibilities the guardian does not have to live with the child unless Court order provides otherwise.

Different Types of Guardians

Natural guardian

The mother is automatically natural guardian
The natural father is automatically a guardian, if he's married to the child's mother or is in a civil union with her
Fathers, who are de facto partners, can be natural guardians, too, if living with the mother since the conception of the child until the birth
If the child was received before 1 July 2005, just living with her when the child was born is sufficient
The father is natural guardian if his name is registered on the child's birth certificate

Both mother and father are then joint natural guardians, otherwise the mother is sole guardian.
Neither guardianship ends when parents separate, even when the child lives with the other parent from that point.

Appointed guardian

The parent's new partner can by consent be appointed as guardian, if he or she shares responsibility for the child's day-to-day care, and has done so for not less than one year
Therefore a special form is needed which is available at the Child, Youth and Family Services and Family Courts. It will be checked by a Family Court Registrar. However, to protect the child appointment is not possible if the partner is or was involved in particular proceedings concerning a child or has a history of domestic violence.

Court Appointed Guardian

The Family Court can appoint a person to be guardian, for example, the grandparents, on his or her own or anyone else's request
This guardianship could be either time limited or limited on a certain task
Family Court can appoint in addition to any other guardian or to both natural guardians, if the child's welfare and best interest require it
Family Court or High Court can even appoint themselves as guardians and then usually Child, Youth and Family Services acts as the Court's agent

Testamentary Guardian

Other persons than the parents or their partners can be appointed as testamentary guardians in one of the parents will
Parents can do so even if they are under the age of 18. Therefore the guardian must be at least 20 when the appointing parent dies
Day-to-day care does not automatically pass to testamentary guardians, but they can of course ask the Family Court to make a parenting order in their favour

The Court will in either case decide on the basis of the child's welfare and best interest !

When a person is not a guardian automatically or by will, application to Family Court is necessary.

End of Guardianship

Guardianship ends when the child turns 18
When he or she marries, enters a civil union or lives with a de facto partner
If the Court-appointed guardianship is time limited, it ends automatically after the appointed date.
The guardian can be removed on application by an eligible person, who could be, for example, the parents, another guardian or the grandparents

Conclusion

Guardianship may be preferable to adoption when a parent remarries or just enters a new relationship and wants to share legal authority over the child, because it does not affect the legal relationship of the other parent and the child.

The advantages and disadvantages of guardianship and adoption should be carefully weighed and the individual situation well-considered!
For any option several contact points such as the Family Court, the Child, Youth and Family Services, Community Centres or the Maori Legal Services are happy to offer both birth and foster parents assistance, information and expert knowledge.

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