One of the family law concepts that causes the most confusion is that of guardianship and what this encompasses.
Many parents are surprised that there is a difference between being the day-to-day carer of a child and being a child's guardian.
Usually, a child's mother and father are joint guardians of their child. They are often referred to as the child's natural guardians.
Guardianship is defined in the Care of Children Act 2004 ("COCA") and in simple terms means all duties, powers, rights and responsibilities that a parent of a child has in relation to the upbringing of that child. Some of these rights and responsibilities include:
- Making arrangements for the day-to-day care for the child;
- Contributing to the child's intellectual, emotional, physical, social, cultural and other personal development;
- Helping to determine important matters in a child's life either for or with the child including any changes to their name, where they live, where they go to school, major medical treatment and what their culture, language and religion will be.
Because all guardianship decisions are required to be made jointly by consulting the other guardians "where practicable" separated parents are still required to consult with the other parent on these matters regardless of the level of physical care of the child each of them has. When preparing Wills clients often ask us about what provision can be made for their children should they die? COCA provides for the appointment of a testamentary guardian. The appointment of a testamentary guardian becomes effective on the death of the guardian parent.
This does not, however, grant the testamentary guardian the automatic right to become the day-to-day carer of the child as there may be another more suitable person to take on this role (for example an absent parent). If a testamentary guardian wishes to also become the child's caregiver then he or she will need to make an application under COCA for a Parenting Order, otherwise their role will be limited to the rights and responsibilities discussed above.
Guardianship of a child ends by one of three ways, namely, when a child turns 18, if a child marries or enters a de facto relationship or if ordered by the Court.
“I can't speak highly enough of Jenny. She got everything done in a timely manner and when my ex-husband threw a spanner in the works at the eleventh hour she got the required documentation to his lawyers and settlement back on track.”
“Joy, we cannot thank you enough for your help with our purchase! You have been wonderful to deal with and so proactive (and patient with my numerous emails). We will be visiting NZ in April so will make sure we drop in to thank you in person.”
“To Michael Robinson – I wanted to thank you and your colleagues for many years of excellent service to the Bank. You have an outstanding business that has proved to be one of the most reliable and ethical businesses that Collections have dealt with in the almost 9 years I was with the Bank.”
“I have used Turner Hopkins for my legal services for over eight years. I have always found their level of service excellent and their work to a very high standard. I have used various lawyers at their firm for various businesses I have been involved with and have always had very positive experiences. I would highly recommend them.”
“I have struggled with different legal firms over the years, but over the past few years I have engaged with Turner Hopkins with various requirements from personal relating to wills, family trust, property settlements and contracts through to commercial engagements including employment advice, commercial lease agreements and general legal advice. I have engaged with a number of the people in the firm and always found them professional, punctual in their responses and very sound in the advice provided.”