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.
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