Applications for day-to-day care of children are made to the Family Court, by applying for a parenting order under the CARE OF CHILDREN ACT 2004.
The Care of Children Act came into force on 1 July 2005. Under the previous Act, the Guardianship Act 1968, "day-to-day care" was called "custody", and "contact" with children was called "access" to children.
When a parent has day-to-day care, this means the child lives with them on a daily basis, and the parent is responsible for everyday things, like making sure the child is safe, warm and properly fed, deciding what time they go to bed, and seeing that they get to school on time each day.
It may be that only one parent has day-to-day care, or that the parents share day-to-day care, whether equally or in some other proportion.
"Day-to-day care" used to be called "custody".
You will need a lawyer to help you apply for a parenting order. It would be unusual for a person to apply and go through the court process without a lawyer.
Application forms for parenting orders are available on the Family Court website at www.justice.govt.nz/family, under Legislation & legal resources / Forms.
The following people can apply:
Certain other people can apply if one of the parents:
The other people who can apply in those cases are as follows:
Parents who have broken up and cannot agree about arrangements for the care of their children have other options before applying for a Court order, such as counselling and mediation, and these should be explored first. The Family Court provides free counselling and mediation services to help in resolving disputes (contact the Family Court Co-ordinator at your local Family Court).
If you apply for a parenting order, the Court will usually refer you to counselling as a first step. If counselling doesn't work, you will usually be referred to mediation. This is where a Family Court judge chairs a mediation conference to try to negotiate an agreement. But the court won't refer you to counselling and mediation if it is unlikely that it will help to resolve the dispute â€“ for example, if there has been violence.
There are a range of possible arrangements that parents might agree on for the care of the children, such as sharing day-to-day care equally or in some other proportion, or one parent having day-to-day care and the other having regular contact with the children.
If you can't reach agreement on your own or with the help of counselling or mediation arranged by the Family Court, you can apply to the Family Court for a parenting order. The courts see a parenting order as a last resort, when other options to resolve the issue have failed.
Parents who are able to come to their own arrangements can prepare a written parenting agreement, and can ask the court to put the agreement into the form of a court order. The order can then be legally enforced in the same way as any other court order.
When the Court is deciding on care arrangements for a child, the first and most important factor is always the child's welfare and best interests. What the parents want or need, and things that a parent has or has not done, are relevant only to the extent that they are relevant to the interests of the child.
You should bear this key factor in mind when you apply for a parenting order, and try to express your wish for this in your application.
The court will not automatically assume that the child is better off with his or her mother rather than the father, or the other way around. The court will look at what's best for that particular child in the particular situation.
The court will take into account a number of specific issues when deciding what is best for the child, including:
If the court orders that one parent will not have day-to-day care of the child at all, the order will usually provide for the other parent to have contact with the child (this used to be called "access"). See further How to apply for a parenting order to get contact (access) with your children.
The court won't make an order for day-to-day care of a child who is 16 or older, unless there are exceptional circumstances.
The court may ask for an expert to prepare a written report on specific issues to do with the case, to help it make a decision â€“ for example, from a psychologist, doctor or social worker. The court can also ask for a cultural report to be prepared, which can deal with any aspect of the child's cultural background.
A parent can ask the court to listen to someone tell it about the child's cultural background and how this may be relevant to the case. The parent must make this request before a date is set for a court hearing.
The court must give the child a reasonable chance to say what they would like to happen. The court must then take the child's views into account before it makes a decision.
The court will usually appoint an independent lawyer to the represent the child if the dispute hasn't been resolved through counselling and mediation and it seems likely the dispute will go to a court hearing. The lawyer is called "lawyer for the child" (formerly, "counsel for the child").
The role of the lawyer for the child is to:
When a parenting order is made, the lawyer for the child must explain the judge's decision to the child and how the decision will affect them.
The parenting order will include a clear and simple explanation of what is in the order. The order will also tell you â€“
Your lawyer must also explain the order to you.
Yes. You or anyone else who was a party to the case can appeal the order to the High Court. The child can also appeal.
If one of the parents breaches the order (for example, by preventing the other parent having contact with the child under the order), the court encourages the parents to try to sort out the problem themselves. In such a case either parent can ask the court to arrange counselling, which is free and confidential. If a parent applies to the court to get them to enforce the parenting order, the court will usually refer the parents to counselling anyway as a first step.
If counselling doesn't resolve the problem, the court can do various things to address it â€“