Mother allowed to change children's surname after father fails to contact them for 4 years

The Family Court has ruled in favour of a mother who has been the sole carer of her children after she and her ex-husband separated. Photo / 123rf

A woman has been allowed to change the surname of her three children after their father barely had anything to do with them for four years.

The man, who lives overseas, was "difficult or impossible" to engage in guardianship decisions, the Family Court at Auckland heard when the mother made a number of applications including to have him removed as the children's guardian.

While the court declined to remove him, it did grant the mother sole guardianship rights in regard to a number of matters and permitted her to change the children's surnames to her own.

The father was aware of the court proceedings but took no steps to be a part of it, Judge Andrea Manuel said in her reserved decision, which was published on Friday and suppresses any of the family's identifying details.

But despite the man's absence from the court process, the judge granted him leave to apply to be reappointed as guardian for the purposes from which he has now been excluded.

"The children will only ever have one father and the door should be left open for him to
become a part of their lives," she said in her decision.

The children's father is living overseas. Photo / 123rf

Though the judge did not gloss over the work the mother had undertaken as sole carer and gave her special praise for her efforts.

"It is to [the mother's] credit that she has assumed sole responsibility for the children's upbringing and they are clearly thriving in her care."

The decision lays bare the former couple's history, which began in 2008 when they met in Asia.

In 2011, the pair married in New Zealand before they returned to Asia a few years later.

By this time, there were difficulties in their marriage due to the man's mental health and issues with drugs and alcohol, the woman told the court.

In late 2017, she told the man she wanted to separate and from then until January 2018, when the man moved to North America, he had limited involvement in the children's lives.

In 2020, the woman, a New Zealand citizen, and the children travelled from Asia to New Zealand to visit family.

She decided to relocate permanently and bought a house in Auckland and entered into a new relationship.

Despite the woman's attempts to keep the father and his family involved in the children's lives, he would only respond to her text or phone calls sporadically.

"He was difficult or impossible to engage about guardianship decisions."

At the time of the family court hearing, in December 2021, he had not seen the children in almost four years and had not spoken to them over the phone for almost three years.

The last phone call had been on Christmas Day 2018.

The woman had turned to the Family Court for help as she was aware of her obligations to consult with the man when making guardianship decisions but was unable to do so given his low level of engagement.

Meanwhile, she continued to make decisions for the children such as enrolling them in school and arranging medical treatment.

But it was not always straightforward. For example, one of the children required a psychologist's report which called for the consent of both parents.

In her application, the woman sought to have the man removed as guardian or, alternatively, to have her appointed as sole guardian for decisions regarding the children's names, their residence (including domestic and international travel), medical treatment and education.

Judge Manuel ruled it had not been established on the balance of probabilities that the
father is a parent who was unwilling to perform or exercise the duties, powers, rights and
responsibilities of a guardian.

"He may be inadequate as a guardian, but this is not necessarily tantamount to being unwilling. He may wish to be a guardian but simply be unable to do so because of his own limitations."

In the alternative, the judge ruled it was in the best interests of the children to appoint the mother as sole guardian for decisions about domestic and international travel, medical treatment and their education.

She ruled it was not necessary to make the same order regarding the children's residence.

On the application to legally change the children's surnames, Judge Manuel said they were already known by their mother's family name.

"This was not unusual given they were in her day-to-day care and supported by the extended maternal family."

The judge said sharing a surname would make travelling with the children easier for the woman.

"I find that an order permitting a one-off change of name as proposed would be in the
children's welfare and best interests and promote the principles of continuity and the children's identity being preserved and strengthened."