Guardianship Proceedings
Guardianship
Under the Guardianship of Infants Act, any guardian may apply to court to determine any question relating to the child’s welfare. In this context, a child is a person under 18 years.
The court may make such order relating to the child’s welfare as it thinks proper. The orders may relate to guardianship, custody, access and other welfare issues.
A guardian is a person who has parental responsibility. Guardianship involves duties on the part of the guardian to the child as well as rights.
It does not necessarily equate with day to day custody of the child. It refers to the overall responsibility for the child’s welfare and upbringing. The choices such as education, religious belief, location of rearing, key medical decisions, etc. are encompassed within the concept of guardianship.
Guardianship & Divorce/JS
Spouses continue to be guardians, notwithstanding judicial separation or divorce. Parties to voidable marriages are joint guardians of the children of the marriage, provided that the decree of nullity is granted after or during the period of 10 months before the birth of the child concerned.
In the case of children born to parents who are married at the time, the parents are joint and equal guardians. If one should die, the survivor is the guardian. A spouse may appoint a testamentary guardian to act with the surviving guardian, if any. In the case of a non-marital child, the natural mother is deemed the guardian. The natural father may become a guardian on later marriage or in accordance with an application to the court by court order.
A testamentary guardian may be appointed by will or by deed. The appointee takes the place of the person concerned as guardian but would not necessarily or usually have custody of the child concerned. The testamentary guardian, on death of the maker, will act with the other surviving guardians, if any.
The surviving parent, whether married or divorced at the time of death, may object to the appointment of a testamentary guardian. In this case, that guardian may only act if, following application to court, the court orders that the guardian is to act jointly or exclusively with the surviving guardian.
Appointment by Court
Any person may apply to the court to be appointed a guardian in the event that both parents have died. Alternatively, that party’s testamentary guardians may act in their place. The court may appoint guardians in addition to the testamentary guardian.
Where a child has no guardian, any person may apply to be appointed guardian under the Guardianship of Infants Act. Where a parent has died and has not appointed a testamentary guardian, or where the guardian has refused to act, the appointee will act jointly with the surviving parent. The court should not exclude the surviving parent.
Grandparents may, for example, be the appointed guardians. The court may order the removal of a person from being a guardian. A substitute guardian may be appointed.
Role of Guardian
A guardian is the guardian of both the assets and person of the child. The guardian is entitled to make decisions or participate in discussions with other guardians in relation to the care and welfare of the child, including his or her education and religious upbringing.
It is possible for a person to be appointed a guardian on more limited terms. In this case, the instrument may limit functions to particular aspects of the child’s welfare or for particular types of decisions.
A guardian is presumed to be entitled to custody of the child as between a third party and the guardian. The guardian may take proceedings for custody of a child who is detained or in the custody of a third person. The guardian may recover damages for trespass or injury to the child for and on behalf of the child.
The guardian is entitled to the possession of all assets of the child. They must be managed for the benefit of the child until the child attains the age of majority. A shorter or other period may be specified by the terms of an underlying deed relating to the grant of the property.
Best Interests
The Guardianship of Infants Act was amended in 2015 to restate the provisions regarding the best interests of the child. It sets out a list of factors that the Court may take into account when determining the best interests of the child. The factors include:
- the benefit to the child of having a meaningful relationship with each parent;
- the child’s views, where ascertainable;
- the physical, psychological or emotional needs of the child;
- the child’s religious, spiritual, cultural and linguistic upbringing and needs;
- the child’s social, intellectual and educational upbringing and needs;
- proposals made for the child’s custody, care, development and upbringing and for access to and contact with the child;
- the capacity of each person for whom an application is made under the Act to care for or meet the child’s needs.
The Court is to have regard to family violence and its impact or likely impact on the safety of the child, other members of his family and the child’s personal wellbeing.
Welfare Report
The Court has the option to seek a report in writing from an expert on the welfare of the child. It may also appoint an expert to determine and convey the child’s views. When considering whether to seek a welfare report or the child’s views, the court will have regard to the age and maturity of the child; the nature of the issues at dispute in the proceedings; any previous report; the best interests of the child; and whether this will assist the child in conveying his or her views.
The expert appointed to ascertain a child’s views has the role of ascertaining the maturity of the child and of assessing whether the child is sufficiently mature to be capable of forming views on the issues at dispute in the proceeding. Where the expert considers the child to be capable of forming views, the expert will have the role of ascertaining those views and of preparing a report on them. The Department/Minister may make regulations on fees, qualifications, experience and standards applicable.
Guardianship & Divorce/JS
Spouses continue to be guardians, notwithstanding judicial separation or divorce. Parties to voidable marriages are joint guardians of the children of the marriage, provided that the decree of nullity is granted after or during the 10 months before the birth of the child concerned.
In the case of children born to parents who are married at the time, the parents are joint and equal guardians. If one should die, the survivor is the guardian. A spouse may appoint a testamentary guardian to act with the surviving guardian, if any. In the case of a non-marital child, the natural mother is deemed the guardian. The natural father may become a guardian in later marriage or in accordance with an application to the court by court order.
A testamentary guardian may be appointed by will or by deed. The appointee takes the place of the person concerned as guardian but would not necessarily or usually have custody of the child concerned. On death of the maker, the testamentary guardian will act with the other surviving guardians, if any.
The surviving parent, whether married or divorced at the time of death, may object to the appointment of a guardian. In this case, that guardian may only act if, following application to the court, the court orders that the guardian is to act jointly or exclusively with the surviving guardian.
Appointment by Court
Any person may apply to the court to be appointed a guardian in the event that both parents have died. Alternatively, that party’s testamentary guardians may act. The court may appoint guardians in addition to the testamentary guardian.
Where a child has no guardian, any person may apply to be appointed guardian under the Guardianship of Infants Act. Where a parent has died and has not appointed a testamentary guardian or where the guardian has refused to act, the appointee will act jointly with the surviving parent. The court should not exclude the surviving parent.
A husband and wife may make an agreement regarding custody of children. However, in the event of a dispute, this is only enforceable if the court is satisfied that it is in the child’s best interest.
Grandparents may, for example, be appointed guardians. The court may order the removal of a person from being a guardian. A substitute guardian may be appointed.
Decisions
The court will rarely give sole custody to a parent without affording rights of access to the other parent or guardian. However, in such exceptional cases where a parent is guilty of serious misconduct such that contact would endanger the child’s welfare, there may be a denial of custody or access.
Decisions of the courts in relation to guardianship and custody may be varied from time to time. No decision is final if new facts or considerations apply. If however, there has been no substantial change in circumstances, the existing decision will not usually be varied.