Who can be a guardian

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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 may be a guardian only 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 law now requires that both parents of a child sign the application for a birth certificate so nearly all fathers are guardians. If the birth was not jointly notified but the father was added to the certificate between 1 July 2005 and 25 January 2009 the father is a guardian if:
    • the mother asked for the father to be added at the time the birth was notified, and produced a notice signed by the father acknowledging paternity and consenting to being added or
    • if the father asked to be added after the birth was notified and the mother confirmed he was the father.
  • the Family Court has appointed or declared the father a guardian.

The father can apply to be appointed a guardian by the Family Court. The court will do this unless it is not in the child's best interest.

Apply to be appointed as a guardian

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Parent’s new partner

A parent’s new partner can be appointed as a guardian by the Family Court if the new partner has helped care for the children for a year or more.

The appointment of a new partner in this way can only happen once. This means only 1 of the child’s parents can have their new partner appointed as a guardian. It also means that a parent can only have 1 new partner appointed as a guardian – if the relationship with the new partner ends, the parent can’t then have a future partner appointed as a guardian in this way.

If you and the other parent agree to appoint a new partner, your application can be dealt with by the court registrar, not a judge. If your application meets all the requirements, the registrar will confirm the decision.

If you and the other parent don’t agree, you can ask the Family Court to appoint your partner as a guardian. The other parent will be able to respond and might ask the court not to make the appointment. A judge will make the decision.

Apply to be appointed as a guardian

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Grandparent 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, like a grandparent or another relative or a friend.

Apply to be appointed as a guardian

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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 is common if there’s conflict between the 2 sides of the child’s family and 1 parent is scared their family will be cut off from the child if the parent dies.

The testamentary guardian must be at least 20 when the parent dies.

Testamentary guardians have the same responsibilities as other guardians but they don’t have the right to have the child in their 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 has 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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