Page updated on: Friday April 23, 2010
When the parents of a child separate, one of the most important issues to work out is arrangements for the care of the children – like whether one or both parents will have day-to-day care or one parent only has day-to-day care, and when and how the other parent will have contact with the children.
It’s better if parents come to their own agreement about care of children and make a parenting agreement. The Family Court arranges free counselling and mediation to help parents reach agreement.
If they can’t agree, then as a last resort either of them can ask the Family Court to resolve the dispute by making a parenting order.
It’s preferable if parents who separate can reach their own agreements about arrangements for the care of their children.
If parents are having difficulties reaching agreement, they can access free counselling and mediation through the Family Court.
What might a parenting agreement deal with?
Parenting agreements usually deal with –
Is a parenting agreement legally binding?
No, a parenting agreement can’t be enforced in the Courts like other agreements and contracts dealing with property.
However, parents and guardians can apply to the Family Court to have a parenting agreement made into a Court order. The agreement can then be enforced like any other Court order.
What if a parenting agreement isn’t working?
If the parents are having a dispute about what the agreement means or how it should work, they can ask the Family Court to arrange free counselling to help get the agreement back on track, perhaps with some agreed changes.
Parenting agreements usually deal with –
No, a parenting agreement can’t be enforced in the Courts like other agreements and contracts dealing with property.
However, parents and guardians can apply to the Family Court to have a parenting agreement made into a Court order. The agreement can then be enforced like any other Court order.
If the parents are having a dispute about what the agreement means or how it should work, they can ask the Family Court to arrange free counselling to help get the agreement back on track, perhaps with some agreed changes.
Parenting orders are made by the Family Court to decide who will have day-to-day care and contact with a child. Orders are a last resort when parents haven’t been able to agree themselves or with the help of counselling and mediation arranged by the Family Court.
Having day-to-day care of a child means they live with you and you’re responsible for everyday things like making sure they’re safe, that they get to school or preschool, and that they’re properly fed and dressed. This may be shared between both parents.
Contact refers to how and when a child gets to spend time with a parent or other person who doesn’t have day-to-day care of them. Contact can be granted to persons such as grandparents or other whanau members,
Usually parenting orders involve disputes between a child’s parents, but other people in a child’s life can apply for a parenting order too. (eg. a grandparent, guardian or a partner of one of the parents).
Regardless of who has day-to-day care and contact under a parenting order, both parents continue to be guardians of their children (assuming they were both guardians before they separated). This means they both continue to be responsible for making important decisions about the children’s upbringing.
Applying for a parenting order
You must complete a special application form and file it with the Family Court. Most people get a lawyer to help them apply for a parenting order. If you can’t afford a lawyer, you may be able to get legal aid to pay for some or all of your lawyer’s bills.
After you’ve applied, the Court will usually require you and the other person to go to counselling to see if you can reach an agreement.
Who can apply for a parenting order?
The following people can apply –
If a parent is dead, or has been refused contact with the child by the Court, or is making no attempt to have contact with the child, then other people are also able to apply as of right. These people are –
You must complete a special application form and file it with the Family Court. Most people get a lawyer to help them apply for a parenting order. If you can’t afford a lawyer, you may be able to get legal aid to pay for some or all of your lawyer’s bills.
After you’ve applied, the Court will usually require you and the other person to go to counselling to see if you can reach an agreement.
The following people can apply –
If a parent is dead, or has been refused contact with the child by the Court, or is making no attempt to have contact with the child, then other people are also able to apply as of right. These people are –
When a dispute about care arrangements for a child is taken to the Family Court, the Court will usually refer the parents or other parties to counselling to see if they can come to an agreement. If counselling isn’t successful, the next step is to go to mediation.
The Court won’t send the parents to counselling and mediation if it’s not likely to help, or if there’s been violence.
If the parents still can’t agree after going to counselling and mediation, the dispute will go to a Family Court hearing in front of a Judge. At the hearing the Judge will make a parenting order to decide what the care arrangements for the child will be.
When the Family Court is deciding about care arrangements for a child, the first and most important factor is always the child’s best interests so the Court will also take into account the child’s views, and will usually appoint a lawyer to act for the child.
The Family Court must consider the following factors when it’s deciding what’s best for a child –
To help it make a decision, the Judge can ask for a written report about the child from a specialist – like a social worker, psychologist, medical doctor, or an expert on the child’s culture.
Cultural reports aren’t limited to dealing with the culture of the child’s particular ethnic group. They can also deal with a child’s particular religion.
When a parent or other person has applied for a parenting order, the child must be given a chance to say what they think – for example, about who they should live with. The Court must take the child’s views into account when it decides the case.
If counselling or mediation hasn’t resolved a dispute about a child, the Family Court will usually appoint a lawyer to act for the child and find out what they think – called a “lawyer for the child”.
This lawyer’s job is to represent the child, and no one else. The lawyer also meets with the child to find out what they think about the dispute and possible solutions to it. The lawyer will make sure the child’s views and all issues relevant to their welfare and best interests are explained to the Court.
The Government pays for the lawyer for the child, unless the Court orders the parents or other parties to the case to share costs.
A parenting order can set out what the care arrangements for a child will be and how they’ll work. Many different options are possible. The Court recognises the importance of both parents being involved in the child’s life and so will make arrangements that allow the child an ongoing relationship with both parents, unless this isn’t in the child’s best interests. The Court also encourages an ongoing relationship with whānau and other wider family groups.
Parents might share the day-to-day care of their child equally, or one parent might provide more of the day-to-day care, or one parent only might have day-to-day care and the other will have contact with the child.
If only one parent has day-to-day care, the Court will specify what contact with the child the other parent will have, including when and for how long.
A parenting order can also deal with things like drop-off and pick-up arrangements, holidays and special events like birthdays.
If a parent or other party to the case claims the other has been violent towards them or the child, the Court will want to get information from both sides. If the Court thinks the claim is true, it normally won’t allow the person who has been violent to have day-to-day care of the child, nor to have any unsupervised contact with the child. The Court must first decide whether the child is at risk by considering the following matters:-
Where supervised contact is ordered by the Court it will have to be supervised by an approved organisation, or by someone chosen by the Court, like a relative or friend of the family. The government pays all of the associated costs for supervised contact.
If a person breaches the conditions of a parenting order, the Family Court has a number of ways it can enforce the order.
First, it will encourage the parents or other parties to the case to try to solve the problem themselves, often with the help of counselling.
If that doesn’t resolve things, the Court can make a range of orders detailed below. The Court must consider whether the action it takes is in the child’s best interests, and can only make an order as a last resort.
The Court can –
It’s a criminal offence to intentionally breach a parenting order without a reasonable excuse. An offender can be jailed for up to three months, or fined up to $2,500.