When parents separate or divorce in New Zealand, one of the most important and often challenging issues to resolve is the care arrangements for their children. Understanding your rights and responsibilities as a parent under New Zealand law is essential for navigating this process and ensuring the best outcomes for your children.
The Legal Framework: Care of Children Act 2004
In New Zealand, child custody matters are governed by the Care of Children Act 2004. This legislation replaced the outdated concept of "custody" with more child-focused terminology and principles.
The Act uses the terms "day-to-day care" (previously called custody) and "contact" (previously called access) to describe parenting arrangements. It also emphasizes the concept of "guardianship," which refers to the right and responsibility to make important decisions about a child's upbringing.
The Paramount Principle: Best Interests of the Child
The fundamental principle of the Care of Children Act is that the welfare and best interests of the child must be the first and paramount consideration in all decisions. This means that parental rights are secondary to what is best for the child.
When determining what is in a child's best interests, the court considers various factors, including:
- The child's physical and emotional safety
- The child's relationship with each parent and other important people in their life
- The child's views (depending on age and maturity)
- The practical circumstances of proposed arrangements
- The ability of parents to cooperate and facilitate the child's relationship with the other parent
- The effect of any family violence
Guardianship Rights and Responsibilities
In New Zealand, both parents are usually the legal guardians of their children, regardless of their relationship status. This remains the case after separation unless the court orders otherwise.
As a guardian, you have the right and responsibility to make important decisions about your child's:
- Education
- Health care
- Religious upbringing
- Cultural identity
- Name
- Where they live (in some circumstances)
Guardianship decisions should be made jointly with the other guardian(s). If guardians cannot agree, they can seek assistance through Family Dispute Resolution or apply to the Family Court for a direction.
Day-to-Day Care and Contact Arrangements
"Day-to-day care" refers to who the child lives with and who is responsible for their daily care. "Contact" refers to how a child spends time with the parent they don't live with day-to-day.
There are various arrangements that can be made for day-to-day care and contact:
Shared Care
Both parents share the day-to-day care of the child, often with the child spending roughly equal time with each parent. This might involve week-about arrangements, splitting the week, or other schedules that work for the family.
Primary Care with One Parent
One parent has the primary day-to-day care of the child, while the other parent has regular contact. Contact might involve weekends, certain weekdays, school holidays, and special occasions.
Supervised Contact
In some cases, contact with a parent may need to be supervised by another adult or a professional supervisor. This might be appropriate where there are concerns about safety, substance abuse, or if a parent and child are rebuilding their relationship.
The specific arrangement that is best depends on the individual circumstances of the family, including:
- The age and needs of the children
- The proximity of the parents' homes
- Work schedules and other commitments
- The children's schooling and activities
- The ability of parents to communicate and cooperate
Making Parenting Arrangements
There are several ways to establish parenting arrangements in New Zealand:
1. Parenting Agreement
Parents can create their own parenting agreement without court involvement. This is often the best approach as it allows parents to develop arrangements that work for their specific situation.
A parenting agreement can be informal or can be recorded in writing. While not legally binding on its own, a written agreement provides clarity and can help prevent misunderstandings.
2. Consent Order
If parents reach an agreement but want it to be legally binding, they can apply to the Family Court for a consent order. This turns the agreement into a court order that can be enforced if necessary.
3. Family Dispute Resolution (FDR)
If parents cannot agree on arrangements, they are generally required to attend Family Dispute Resolution (mediation) before applying to the Family Court. FDR involves a neutral mediator who helps parents discuss issues and reach agreements about their children.
4. Parenting Order from the Family Court
If parents cannot reach an agreement through FDR, either parent can apply to the Family Court for a parenting order. The court will make decisions based on what it considers to be in the best interests of the child.
The Role of the Child's Voice
The Care of Children Act recognizes that children should have a say in matters affecting them, with the weight given to their views depending on their age and maturity.
In Family Court proceedings, the court may:
- Appoint a lawyer to represent the child (Lawyer for Child)
- Request a psychological report
- Speak directly with the child (in some cases)
The Lawyer for Child's role is to represent the child's interests and convey the child's views to the court. They meet with the child, explain the process, and help ensure the child's voice is heard.
Relocation and International Travel
Relocation
If you want to move with your child to another city or country, and this would affect the other parent's ability to spend time with the child, you generally need:
- The consent of the other guardian; or
- Permission from the Family Court
Relocation cases are often complex and challenging. The court weighs various factors, including the reason for the move, the impact on the child's relationship with the other parent, and the potential benefits and disadvantages for the child.
International Travel
Taking a child overseas temporarily (e.g., for a holiday) requires the consent of all guardians unless:
- There is a court order allowing the travel
- The travel is specifically allowed in a parenting agreement or order
If a guardian unreasonably withholds consent for international travel, you can apply to the Family Court for permission to travel.
Enforcement of Parenting Orders
If a parenting order is not being followed, there are several options:
- Try to resolve the issue directly with the other parent
- Seek assistance from a counselor or mediator
- Apply to the Family Court for enforcement
The court has various powers to enforce parenting orders, including:
- Adjourning the proceedings to allow compliance
- Varying the parenting order
- Imposing a bond
- Ordering compensation for lost contact
- In serious cases, imposing a fine or imprisonment
Changing Parenting Arrangements
Parenting arrangements may need to change as children grow older or circumstances change. If both parents agree to the changes, they can:
- Create a new parenting agreement
- Apply to vary an existing parenting order by consent
If parents cannot agree on changes, they generally need to attend FDR before applying to the Family Court to vary a parenting order. The court will only make changes if it is satisfied that the changes are in the best interests of the child.
Practical Tips for Co-Parenting
Regardless of the legal arrangements, effective co-parenting is crucial for children's wellbeing after separation. Here are some practical tips:
- Focus on the children: Keep their needs and interests at the center of all decisions
- Communicate respectfully: Maintain businesslike communication about the children
- Be consistent: Try to maintain similar rules and routines across both homes
- Be flexible: Be willing to accommodate reasonable changes to arrangements
- Shield children from conflict: Never argue in front of children or speak negatively about the other parent
- Support the other parent's relationship: Encourage children to have a positive relationship with both parents
- Use tools: Consider using co-parenting apps or shared calendars to manage schedules and communication
Conclusion
Navigating child custody matters in New Zealand can be challenging, but understanding the legal framework and your rights and responsibilities is an important first step. Remember that the law prioritizes the best interests of children, and arrangements should be designed to support their wellbeing and development.
While the legal aspects are important, the most successful parenting arrangements after separation are those where parents can put aside their differences and work together for the benefit of their children. Seeking professional advice and support early can help you develop arrangements that work for your family's unique circumstances.