Who a guardian can be

Guardianship is not limited to biological parents. Other relatives or friends can apply to be appointed guardians if the parents are unable to look after a child, or a guardian might be chosen and appointed by the court.

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Child’s mother and father

Usually, a child's mother and father are both guardians of the child. They are often referred to as the child's natural guardians.

A child's mother is automatically a guardian. The child's father is a guardian if:

  • he was married to, or in a civil union with, the child's mother at any time from when the child was conceived until it was born
  • the child was conceived before 1 July 2005 and he was living with the child's mother (in a de facto relationship) when the child was born
  • the child was conceived on or after 1 July 2005 and he was living with the child's mother at any time between conception and the birth; or on or after 1 July 2005 he and the mother jointly notified the birth and the father’s name appears on the birth certificate.
  • the Family Court has appointed or declared the father a guardian.

In addition, the law now requires that both parents of a child sign the application for a birth certificate (giving notification of the birth) so nearly all fathers are guardians.

If both parents didn't sign the application, but the father was added to the certificate between 1 July 2005 and 25 January 2009, the father is considered a guardian if:

    • the mother asked for the father to be added at the time the birth was notified, and produced a notice that the father has acknowledged he is the father and consenting to being added or
    • the father asked to be added after the birth was notified and the mother confirmed he was the father.

The father can apply to the Family Court to appoint him as a guardian. The court will do this unless it's not in the child's best interests.

Apply to be appointed as a guardian

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Parent’s new partner

The Family Court can appoint a parent's new partner as a guardian if the new partner has helped care for the children for a year or more.

This kind of appointment can only happen once. This means that:

  • only one of the child’s parents can have their new partner appointed as a guardian
  • a parent can only have one new partner appointed as a guardian. If the relationship with the new partner ends, the parent is unable to have a future partner appointed as a guardian in this way.

If you and your ex-partner agree to appoint a new partner as guardian, the court registrar, rather than a judge, deals with your application. If your application meets all the requirements, the registrar will confirm the decision.

If you and your ex-partner don’t agree, you can ask the Family Court to appoint your partner as a guardian. Your ex-partner will be able to respond and might ask the court not to make the appointment. A judge will make the decision for or against.

Apply to be appointed as a guardian

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Grandparents and other relatives or friends

If the parents aren’t able to look after the child, other people can apply to the Family Court to be a child’s guardian. These people may be a grandparent or another relative or a friend. 

Whāngai

Whāngai is an informal Māori customary adoption. It usually involves a child or children being raised by grandparents, whānau, or extended family. Whāngai arrangements are managed directly between the birth parents and the mātua whāngai (the family who are raising the child). 

For help with guardianship issues related to whāngai adoption, contact your local Community Law Centre. You can also read more about whāngai adoptions on the Te Ara website.

Community Law Centre(external link)

Te Ara website(external link)

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Testamentary guardian

A parent can name a person in their will (or another formal legal document) to be a testamentary guardian if the parent dies. Testamentary guardians automatically become guardians once the parent dies. They don’t need to apply to the court.

If the other parent is also a guardian and is still alive, then the testamentary guardian will share guardianship with the other parent. This arrangement is common if there’s conflict between the two sides of the child’s family and one parent is scared that, if they die, their family will be cut off from the child.

To become a guardian, the testamentary guardian must be at least 20 years old when the parent dies.

Testamentary guardians have the same responsibilities as other guardians, but they don’t have rights to the child's day-to-day care. If they want this, they can apply to the Family Court for a Parenting Order (‘Parenting Order’ is a legal term. It doesn’t mean only parents can apply).

Find out more about Parenting Orders

If the other parent or another guardian isn't happy about who's been named as a testamentary guardian, they can ask the Family Court to remove that person as a guardian or to appoint someone else in their place.

Apply to appoint or remove a guardian

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