Guardianship relates to the duties of a person as to the welfare, care and upbringing of a child. Married parents are automatically joint legal guardians of their children. However, the rights of unmarried fathers are different. A father who is not married to the mother of his child does not have automatic guardianship rights to that child. Such a father must apply to court to be appointed joint guardian of a child. Guardianship is not dependent on custody, therefore, a Guardian does not need to have custody of a child. The following is a summary of positions regarding those parties who can be appointed Guardians and the manner of such appointments.
The father and mother of an infant shall be Guardians of that infant jointly.
Non Marital Children
The following relates to children born of parents who are not married at the time of birth. In those circumstances, only the natural mother is automatically deemed to be a Guardian. The natural father can become a Guardian by a number of means:
Subsequently marry the natural mother
Apply to the Courts to be appointed a Guardian. There is no automatic right to be appointed a Guardian, rather it is merely a right to apply to be appointed
Reach an agreement with the natural mother to be appointed a Guardian. A Statutory Declaration will give effect to this agreement.
Following the death of the natural mother or other Guardian, the natural father may be appointed Guardian. If he is so appointed, he is referred to as a ‘Testamentary Guardian’. Up until 20 years ago, the issue of Guardianship rights of unmarried fathers was quite simple. There were no such rights. It was not until the Status of Children’s Act 1987 that natural fathers could apply to Courts to be appointed a Guardian. It was made very clear by the Supreme Court in the decision of JK –v- VW that this was merely a right to apply and was not a right to be automatically be appointed Guardian. Natural mothers have an automatic right to Guardianship, natural fathers do not. Guardians have an automatic right of custody to a child as against all non Guardians.
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