Guardianship, custody, and access

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What is guardianship?

Guardianship is the right of control over a child's upbringing, including deciding where a child will go to school, what activities the child will participate in outside of school hours, what medical treatment the child will receive, what religion the child will be brought up with, whether a child will travel overseas, and where a child will live. These issues are explored further under the heading Guardianship issues.

Guardianship carries with it the right to have the child in the guardian's day-to-day care, unless a custody order has been made by the Family Court. Mothers are always guardians, and she will be the sole guardian if:

she is not married to the father of the child, and either:
- has never been married to the father, or
- her marriage to the father was dissolved before the child was conceived, and
she and the father of the child were not living together as husband and wife at the time the child was born. If the father is not a guardian, he can apply to the Family Court to be appointed as a guardian. The Family Court also has the power to remove guardians. The father or mother can also appoint testamentary guardians by will, to stand in their place in the event of their death.

What is custody?

If the parents separate and both parents are guardians, then both parents have the right to have the child in their day-to-day care. Therefore, often one or both parents will apply for a custody order in respect of the child in the Family Court.

Separated parents may agree who will have custody of the child and may or may not record that in a custody order with the Family Court. Often it will be recorded in a written agreement.

If the Family Court makes a custody order, that order will state who has custody of the child, or whether both parents have shared custody of the child. Generally, custody orders are only made in respect of children aged 16 or under.

What is an access order?

If the Family Court has made a custody order in respect of one parent, it may make an access order in respect of the other parent. An access order defines the times that the non-custodial parent will have the child in their care. Other conditions may be attached to access orders, such as that it be supervised by another adult.

Guardianship issues

As stated previously, there are a number of issues that may be classed as guardianship issues. Generally, these are the 'big' decisions relating to a child's care and upbringing. If the guardians of a child are unable to agree on a guardianship issue, they may apply to the Family Court to have the issue determined. Some guardianship issues that are relevant in a school context are discussed below.

Health and medical treatment

Guardians are entitled to be made aware of any need for urgent medical treatment or life-threatening situations. If the school has reason to believe there is no cooperation between the guardians, and the school has been asked to inform both guardians of any important issues, then the school should contact both guardians in the event of a medical emergency. Similarly, both guardians, where there is no cooperation between guardians, should be advised of outcomes of hearing and vision tests and whether a child needs to attend remedial courses such as reading recovery.

Religion

Where religious education is provided at the school and there is cooperation between guardians, then it is sufficient that one guardian consents to the child's attendance at religious education. However, if the parents are separated and the school has reason to believe there is no cooperation between the guardians, then the permission of both guardians should be sought. If the guardians disagree on whether the child should attend religious education, then one or other parent can issue proceedings in the Family Court to have a judge decide the issue.

Photographs and school reports

In a Masterton Court decision, L v H (3 September 1996, Judge Pethig, FC Masterton), the father, who was not the custodial parent, asked for a photograph of the child. In that case, the child was frightened of the father. The court held that the father was requesting the photographs for his own benefit and it was not for the child's benefit. The father's application was refused.

However, where a guardian requests such items, including school reports, unless there is a court order preventing their release, the school should provide the information sought.

Where a school finds itself in the situation of having to send out two copies of all school reports and newsletters to separated parents, then it would not be unreasonable to seek a contribution from the parents to any additional costs caused by that.

Children's names

It is not unusual, where one parent has custody, for the custodial parent to seek to change the child's name to their name − for example, if a married woman who has custody reverts to her maiden name or remarries. The other guardian is entitled to object to the change of name and it has been held by the Family Court to be a guardianship issue. Therefore, if a parent approaches the school to unilaterally change the surname of a child, the school should ask for a copy of the court order authorising that change.

School

The choice of school is also a guardianship issue.

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