The law treats parents as the natural guardians of their children until age eighteen, but there are cases in which one parent asks the court to restrict the other parent’s guardianship rights.
A distinction should be drawn between a one-time restriction of guardianship, for example an urgent need for a signature for medical treatment when only one parent is available, or a signature for a passport application, and a sweeping, substantial restriction of guardianship, for example where one parent is abroad, where a parent has chosen not to be involved in raising the children, or where a parent withholds signatures on specific matters simply to make life difficult for the other side.
In this article we discuss the sweeping restriction of a parent’s guardianship rights over children. We examine when the court appoints a guardian for a minor and when it will revoke or limit guardianship. We also present a case from the lawyer’s desk in which the court restricted a father’s guardianship rights over his minor daughter.
Restricting guardianship rights – when does the court appoint a guardian for children?
The law makes parents automatically the natural and legal guardians of their children until age 18. The assumption is that parents act in their children’s best interests and that every decision they make puts the children first, so the state does not second-guess parents’ judgment in their role as guardians.
But there are situations in which the state will step in, for example when parents fail in their duty toward the children, neglect their needs, and avoid their obligations without reasonable cause.
When both parents of a minor have died, when they have been declared legally incompetent, or when guardianship has been revoked from the parents for various reasons, the court will appoint a guardian for the minor children.
In the case of same-sex couples raising a child together, the court may appoint the biological parent’s partner as guardian, but only on condition that the other biological parent is deceased, unknown, or not in contact with the child.
Restricting guardianship rights – when does the court restrict them?
Section 27 of the Legal Capacity and Guardianship Law deals with revoking or limiting a parent’s guardianship. In essence, where a parent’s conduct toward the minor falls within the situations described in section 3.3 or 3.4 of the Youth (Care and Supervision) Law, 1960, the court may strip that parent of guardianship over the minor or restrict it. The same applies where the court is satisfied that the conditions under which a magistrate’s court would have acted against the parent have been met.
In other words, when a parent does not act toward the minor the way the law requires, that is, in the minor’s best interest, the court may take away his rights as guardian of his children or limit them.
Restricting guardianship rights – from the lawyer’s desk
An application was filed in the Family Court in the north of the country to restrict a father’s guardianship rights and grant the mother exclusive authority over their minor daughter in matters of health and education, along with sole signature authority on passport applications.
The judgment shows that the father had no contact with his minor daughter for many years and that the mother cares for her alone. The mother, who copes with mental health difficulties stemming from post-traumatic stress disorder, devoted herself fully to raising her daughter, while the father, who served two separate prison terms, entered a new relationship and had another child in it. A social worker who visited the mother’s home was likewise impressed that the mother is devoted to the child, that the two have a good relationship, and that the mother gives the girl everything she needs.
For four years the parents have had no contact with each other. When the mother wants to pass a message to the girl’s father, she turns to his mother, the grandmother, who speaks to the father and relays the answer back. Notably, the grandmother has not met the girl at all over the years.
Now the girl is about to enter first grade. She needs various treatments, assessments, and placement in a special education class, which requires assessments and psychological treatment. The father, whom the mother approached to sign the documents required for the assessments and treatment, refuses to sign. The mother argues that his refusal and his conduct are meant only to make things difficult for her, and so she applied to the court to restrict the father’s guardianship rights.
In her report, the social worker wrote that she came away convinced that had the mother not filed the application to restrict the father’s guardianship, the father would not have been involved in the daughter’s life at all and would have made no effort to be in contact with her. She therefore recommended restricting the father’s guardianship rights and allowing the mother to act as sole guardian in matters of health, education, and passport issuance, and to move home as she sees fit.
The father objected in court, insisting he was not merely a bystander in his daughter’s life, but the court granted the mother’s application. In the ruling, the judge held that the minor’s best interest is the sole guiding consideration, and that although restricting the father’s guardianship carries weighty consequences, the mother’s position must be accepted.
To sum up: restricting one parent’s guardianship despite natural guardianship
Although the court regards parents as the natural guardians of their children, there are situations in which it will intervene in the children’s upbringing and restrict the guardianship rights of one parent or, in exceptional cases, of both.
