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This article is focused on New Zealand law and explains issues from a Common law perspective.
How to apply for a parenting order for day-to-day care (custody) of a child within NZ
Applications for day-to-day care of children in New Zealand are made to the Family Court, by applying for a parenting order under the CARE OF CHILDREN ACT 2004.
What is "day-to-day care"?
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".
How do I apply for a parenting order?
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 form finder website.
Who can apply to the Court for a parenting order?
The following people can apply:
- a parent or guardian of the child
- a partner of one of the parents (whether they are married, in a civil union or in a de facto relationship) if they've been sharing day-to-day care of the child
- any member of the child's family, whnau or other family group who gets the court's permission to apply
- anyone else who gets the court's permission to apply
Certain other people can apply if one of the parents:
- has died
- is stopped by the Family Court from having contact with the child, or
- is not trying to have any contact with the child
The other people who can apply in those cases are as follows:
- the mother or father of the parent who is dead or who is not having contact with the child
- a brother or sister of that parent
- a brother or sister of the child
Options other than going to Court
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 - 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.
How does the Court decide on who should have day-to-day care?
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:
- the need for the child's parents and guardians to take the main responsibility for looking after them
- the need for continuity in the arrangements for looking after the child
- the need to maintain and strengthen the links between the child and their whanau or other wider family group
- the need for co-operation between parents, guardians and others who are involved in looking after the child
- the need to keep the child safe at all times
- the need to preserve and strengthen the child's identity, including their culture, language and religion
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.
Specialist reports and cultural speakers
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.
Getting the child's point of view
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.
Lawyer for the child
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:
- meet with the child to find out what they think about the dispute and what they would like to happen
- represent the child and the child's best interests as the case goes through the court system
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.
Understanding the parenting order
The parenting order will include a clear and simple explanation of what is in the order. The order will also tell you -
- any processes the court has decided on for checking on and reviewing how the order is working in practice
- how you can get the order changed or cancelled
- what happens if a person breaches the order (see below)
Your lawyer must also explain the order to you.
Can I challenge the parenting order?
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.
What happens if either side breaches the parenting order?
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 -
- it can "admonish" the other parent who has breached the order (tell them off)
- change or cancel the order â€“ for example, it could reduce the amount of time during which the person has day-to-day care of the child
- the court can order the person to pay money to the court as a bond, which they could lose if they continue to disobey the order
- if one parent had to spend money because of the other parent's breach (like paying for travel tickets), the court can order the other parent to compensate them by paying them an amount of money
- if one parent is preventing the other from having day-to-day care or contact with the children as provided in the parenting order, the court can order the Police or a social worker to pick up the children and deliver them to the other person
- You should attempt to resolve any dispute about care arrangements amicably through negotiation, without going through the court process. This will be best for everyone - most importantly, for the children. If you do find yourself involved in court proceedings, you would be well advised not to pursue the dispute as if it were all-out war. Not only will this tend to be destructive for the children, the Family Court is unlikely to look favourably on a parent who is angry and hostile. The court will always do what is in the welfare and best interests of the children.
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