Who can be a guardian

Parents (the mother and father)

The child’s birth mother is automatically a guardian. The father is automatically a guardian if he is named on the birth certificate or if one of the following apply.

• The father was married to, or in a civil union with, the child's birth mother at any time during the birth mother’s pregnancy
• The birth mother got pregnant on or after 1 July 2005 and the father was living with the child's birth mother (in a de facto relationship) at any time during the birth mother’s pregnancy
• The birth mother got pregnant before 1 July 2005 and the father was living with the child’s birthmother (in a de facto relationship) when the child was born
• The Family Court has appointed or declared the father a guardian.

If the child’s father isn’t named on the birth certificate at birth, but was added to the birth certificate between 1 July 2005 and 25 January 2009, they are also considered a guardian if:

• the birth mother and father jointly asked for the father to be listed as a guardian at the time the birth was notified
• the birth mother showed a notice of the father’s agreement to be listed as a guardian at the time the birth was notified
• the father asked to be added after the birth was recorded, and the birth mother confirmed the father’s identity.

The child’s father can apply to the Family Court to be appointed as a guardian. The Court will usually agree to do this, unless they decide it’s not in the child's best interests.

Appoint another person as a guardian

If parents separate, they’ll both continue to be guardians. They should try make decisions about their child together.

Make a parenting plan

A parent's new partner

In some cases, you can apply to the Family Court to appoint a parent’s new partner as an extra guardian. You can do this without having to attend a court hearing.

A new partner can only be appointed in this way if:

• both of the child’s birth parents agree
• the new partner has had shared responsibility for the child’s day-to-day care for a year or more
• the new partner has never been involved in proceedings concerning a child under the Care of Children Act, Oranga Tamariki Act, or the Family Violence Act
• the new partner has never been convicted of an offence involving harm to a child
• this is the first time you or your child’s other parent have used this process to appoint a new partner as an extra guardian
• a deputy registrar approves the application.

Appoint a new partner as a guardian

Whānau

You can apply to the Family Court for a whānau member to be appointed as your child’s extra guardian.

For example, you may want to apply for this if:

• you’ve decided they’ll have day-to-day care of your child
• you’re going to be out of the country and your whānau will look after your child while you’re gone.

Whānau members can apply if they think they should be an extra guardian for your child. They don’t need your permission to apply.

Appoint another person as a guardian

Whāngai adoption

Whāngai is the unique and special cultural practice of raising children who are not your biological children. Whāngai arrangements are managed directly between the birth parents and the mātua whāngai (the family who are raising the child). Whāngai is an informal arrangement and is not formally recognised by the law.

To find out more about whāngai arrangements visit:

• Community Law Manual webpages on whāngai(external link) and whāngai adoption(external link)
• Te Ara website(external link)

For help with guardianship, rights, and responsibilities related to whāngai adoption, contact your lawyer or nearest Community Law Centre.

Get legal help and advice

Testamentary guardian if a parent dies

A parent can name someone as a testamentary guardian of their child in their will, or by deed.

If a parent dies, and they were a guardian of the child at the time of their death, the testamentary guardian will automatically become a guardian of the child. For this to happen, the testamentary guardian must be 20 or older. If the parent dies and wasn’t a guardian of the child at the time of their death, the testamentary guardian won’t automatically become a guardian. They can apply to the court to appoint themselves as a guardian.

If the child has other guardians, the testamentary guardian will become a joint guardian. This means they’ll share guardianship duties with the other guardians.

Anyone unhappy about who’s been named as a testamentary guardian, can ask the Family Court to remove that person as a guardian.

Remove someone as a guardian

Appoint another person as a guardian

Court-appointed guardian

The Family Court can also appoint a guardian. This may be because someone has applied – for example, you, a whānau member, or another caregiver. The court can decide to appoint a guardian if it’s in the child’s best interests, even if no application has been made.

The Court as a guardian

The Court can appoint itself as a child’s legal guardian. When this happens, it usually appoints Oranga Tamariki as an agent of the Court. The following people can ask to have the Court appointed as a child’s guardian:

• the child’s parents, guardians, or whānau
• a parent’s partner or spouse
• the child themselves
• the Chief Executive of Oranga Tamariki.