Family Court

Introduction

If a parent has a new partner who has been sharing day-to-day care of the parent's children for at least a year, the parent may be able to appoint the new partner as a guardian of the children. This will depend on whether any of the restrictions that are set out in the Care of Children Act 2004 apply. A new partner might be appointed a guardian in this way, for example -

If the other parent of the children is alive, then both parents have to agree with the appointment and make it together.

Also, the children have a right to have their views on the appointment heard and taken into account, before the appointment is made by the parents and the new partner.

The parent and the new partner may be married, in a civil union or in a de facto relationship.

Child or parent must be a NZ citizen or resident

A parent cannot appoint a new partner as a guardian of a child unless the child or one of the parents is a New Zealand citizen, or the child or one of the parents usually lives in New Zealand.

Family Court will check that appointment can be made

The appointment is made using a special form. A Family Court Registrar must check that the appointment form is in order. They must be satisfied that the proper information has been provided, that the paper-work has been done correctly, and that none of the restrictions that may prevent an appointment apply.

What are the restrictions on appointing a partner as guardian?

To be appointed as a guardian, the new partner must be sharing day-to-day care of the child and must have been doing so for at least a year. There are other restrictions relating to the partner. For example, they must not have been involved in certain Court cases about children or have been convicted of certain offences involving children.

Other restrictions relate to the child and the parents. Most of these are to do with whether the child or a parent has ever been involved in a Family Court case.

All of these restrictions are explained in detail on the next pages.

Who can make the appointment?

Both parents must agree with the appointment and make it together if -

• they both are guardians of the child, or
• the child was conceived before 1 July 2005 and the mother is sole guardian only because she was not married to or in a civil union with the father at any time from when the child was conceived until it was born, nor living with the father when the child was born, or
• the child was conceived on or after 1 July 2005 and the mother is sole guardian only because she was neither married to, in a civil union with, nor living with the father at any time from when the child was conceived until it was born.

If one of the parents is dead and did not appoint a guardian in a will or deed (a testamentary guardian) and there are no other guardians, the surviving parent can make the appointment alone.

If a parent appointed a testamentary guardian before that parent died, and the surviving parent is a guardian, then the two guardians must agree with the appointment and make it together.

If the mother is the sole guardian because she became pregnant using reproductive technology and didn't have a partner at the time, then she can make the appointment alone.

Restrictions on Parents appointing new partners as guardians

Restrictions relating to the new partner

A parent cannot appoint a new partner as a guardian of a child unless the new partner is sharing day-to-day care of the child and has been doing so for at least a year.

However, even if the new partner is sharing the day-to-day care of the child, they cannot be appointed as a guardian if -

• they have ever been involved in any Family Court case about guardianship of a child, or about arrangements for the care of a child
• they have ever been involved in any Family Court case to do with care or protection of a child under the Children, Young Persons, and Their Families Act 1989
• anyone has ever applied for a domestic violence protection order against them, or
• they have ever been convicted of an offence involving harm to a child, including violence, abuse, neglect and child pornography.

Does the new partner have to be married to a parent?

No. They can be married to each other, be in a civil union, or be in a de facto relationship; it doesn't matter which.

Can same-sex partners be made guardians?

Yes. A partner can be appointed a guardian of a child whether their relationship with the child's parent is same-sex or heterosexual.

Restrictions relating to the child

A parent cannot appoint a new partner as a guardian of a child if -

• the child has a guardian who was appointed by the Court
• an application for a declaration that the child needs care or protection has been made at any time under the Children, Young Persons, and Their Families Act 1989, or
• the child has ever applied for a domestic violence protection order, or even been covered by a protection order.

Restrictions relating to the parents

A parent cannot appoint a new partner as a guardian of a child if -

• they have already appointed a new partner as an additional guardian of the child
• they have ever been removed as a guardian of a child by the Court
• they have ever been involved in a dispute in the Family Court about the guardianship of a child, or about arrangements for the care of a child
• they have ever been involved in a case in the Family Court to do with the care or protection of a child under the Children, Young Persons, and Their Families Act 1989, or
• they have ever had an application for a domestic violence protection order made against them.

Can more than one new partner be appointed in this way?

No. Only one new partner can ever be appointed a guardian of the child in this way. If the other parent later gets into a stable relationship with someone who shares the day-to-day care of the child, their new partner cannot also be appointed a guardian in this way.

Is there any other way a new partner can become a guardian?

Yes. If for any reason a parent is not able to appoint a new partner as a guardian, or the Registrar does not approve their appointment, the new partner can ask the Family Court to appoint them a guardian. The Judge would need to be satisfied that it was in the child's best interests for the partner to become a guardian.

The Process for appointing the new guardian

Does the Child have a say?

Yes. Before the new guardian is appointed, the parents and the new partner must do everything they reasonably can to find out what the child thinks about the new partner becoming a guardian. They must take the child's views into account before they decide to make the appointment.

Are there special forms and documents?

Yes, there's a special form for making the appointment. The Family Court has copies of the forms. They can also be downloaded from the Family Court website at www.justice.govt.nz/family.

In most cases both parents and the new partner must sign the form. This indicates that each of them agrees to the new partner becoming a guardian. The form must be accompanied by -

• statutory declarations from the parent or parents making the appointment and the new partner, and
• a copy of the partner's criminal record, which can be obtained from the Ministry of Justice website at www.justice.govt.nz/privacy.

What is a statutory declaration?

A statutory declaration is a formal statement in writing made in front of a lawyer, a Registrar or Deputy Registrar of the Family Court, a Justice of the Peace or some other person who is authorised to take statutory declarations. That person must also sign the declaration.

What has to be in the statutory declarations?

The parent or parents making the appointment and the new partner each must make a statutory declaration saying -

• whether or not they think it's in the child's best interests to make the new partner a guardian
• whether or not they think they have done everything reasonably possible to find out what the child thinks and to take those views into account
• that as far as they know, the new partner has never been convicted of an offence involving harm to children, and
• that as far as they know, none of the other restrictions on a new partner being appointed a guardian apply.

What will the Family Court do when it has the documents?

The Registrar of the Family Court will check that all the necessary documents and forms are included and that the forms and declarations have been filled in properly.

The Registrar will also look up the Family Court's records to check that the appointment of the new guardian isn't barred by any of the restrictions explained above. For example, the Registrar will check that the partner has never been involved in a guardianship dispute in the Family Court, and never had an application for a domestic violence protection order made against them.

Can the registrar refuse to approve the documents even if none of the restrictions apply?

No. The Registrar's role is simply to check that everything is in order - that the proper information has been provided, that the paper-work is done correctly, and that none of the restrictions preventing a new partner being appointed a guardian apply. If there are no problems, the Registrar has to approve the new partner's appointment as a guardian.

If the registrar approves the documents, when does the appointment take effect?

The appointment takes effect as soon as the Registrar approves it. Sometimes the Registrar will need to obtain records from another Family Court.

Need more information or advice?

Some areas of the law relating to the appointment of partners as guardians are quite complicated and not always easy to understand. Particularly if the circumstances are unusual, it can be helpful to discuss the matter with a family lawyer (visit www. familylaw.org.nz), a community law centre, or the nearest Family Court office.

Information is also available on the Family Court website (www.justice.govt.nz/family).

Legal aid

Anyone who needs a lawyer but can't afford one may be able to get legal aid. This is where the Government pays some or all of the lawyer's bills (sometimes you may have to pay some or all of it back).

You can get information on legal aid by –

• contacting your local Legal Aid Services office, based at your local District Court (see the blue Government pages at the front of the phonebook)
• visiting the Legal Aid Services pages on the Ministry of Justice website at www.justice.govt.nz/services/getting-legal-aid, or
• seeing a lawyer and discussing legal aid with them.

Legal Aid is available for all Family Court cases, except dissolution of marriage (divorce).

www.justice.govt.nz/family
Courts 003
March 06