Care of Children

Children’s care arrangements following separation

Making parenting arrangements for children after a relationship breaks down can be stressful for parents, children and other family members.

Our team can assist you to navigate this complex area of law and to make parenting arrangements that are workable and, most importantly, meet your children’s particular needs and best interests.

In most cases, parents can agree on arrangements for the ongoing care and welfare of their children. If parents can agree on parenting arrangements, this can be documented either by a parenting plan or an application to the court for the approval of consent parenting orders.

Parenting plans are written documents setting out the agreement reached between parents.  A parenting plan will help you work through and record decisions like day-to-day care of your children (custody) – you might want to agree to share day-to-day care equally, or one of you may do most or all of the day-to-day care, arrangements for contact (access) – if you or your ex-partner has the children most of the time. The parenting plan records how the other parent is going to spend time with them, including for birthdays, other special days, Christmas and holidays other parenting issues – such as what school the children will go to, as well as their after-school activities, religion, religious holidays, cultural identity, medical treatment, and changes to their name.

Consent parenting orders are formal orders documenting the agreed parenting arrangements and must be approved by the court. If you both want to, you can get the Family Court to make your private agreement or parenting plan into a Consent Order. This means that if one person breaks the agreement, you can get the court to enforce it. The court does not make any decisions for you when making a Consent Order. It is using the agreement you’ve already made and making it enforceable by the court.  If you wish to get a Consent Order you do need to pay court costs. You must complete the Parenting Through Separation course before applying for the Order, unless you can provide the court with a sufficient reason why you don’t want to attend.

Both parenting plans and consent orders may deal with one or more of the following:

• who the children will live with and how time will be spent with the other parent, or whether the children will spend equal time with each parent
• arrangements for school holidays and special occasions such as birthdays, Mother’s Day, Father’s Day, and significant cultural or religious events
• arrangements for the children to spend time with other people who are significant in their lives, for example, grandparents, siblings, step siblings and other relatives
• which extra-curricular activities the children will attend
• overseas travel
• schooling
• Payment of children’s expenses such as school fees or uniforms
• How guardianship decisions will be made in respect of important matters affecting the child such as medical treatment or which school they attend and the form of consultation required between the parents before a decision is made

What if an agreement cannot be reached about parenting arrangements?

If your relationship ends, you need to try to resolve the care and contact arrangements for your children yourselves before you can go to court.

You can apply for an urgent parenting order if you or your children are at risk of domestic violence, or if your children are being taken out of New Zealand without your agreement.

It is best if you can agree directly with your partner on how you will take care of your children when you separate. If you cannot agree on parenting arrangements, you have to follow a process to try and resolve it yourselves before it gets to court. This includes the following steps:

•  Complete a parenting through separation course. This free course helps parents focus on the needs of children. You have to do this first.
• Mediation run by a family dispute resolution service provider. If you cannot agree on parenting arrangements after completing the parenting through separation course, you will work with a mediator to help you decide together how your children will be cared for. There’s a cost for mediation, but some people qualify for funding.
• Apply to the Family Court. If you still cannot agree after completing the course and mediation, you can apply to the Family Court to make a parenting order.

Steps Before Applying to The Court

If you’ve tried to reach agreement out of court but still can’t agree, the Family Court can decide about the care of your children. The court can only make a Court Order if:

• the Order is for the welfare and best interests of the children involved; the court takes the children’s views into account.
• If you want to ask the Family Court for a Court Order regarding the care of your children, usually the court will require you to have first completed the Parenting Through Separation course and tried Family Dispute Resolution (FDR).
• FDR is not required in some circumstances, such as when you are applying ‘without notice’, or if you are applying for a consent order, you are responding to an application for a parenting order, care and protection proceedings have already started or you provide an affidavit giving evidence that you have been unable to participate in FDR or that the other person has been violent towards you or your child.
• You usually can’t apply for a Parenting Order unless you (the person applying) have been to one of the Family Court’s Parenting Through Separation courses in the last two years.
• Your application for a Parenting Order will need to include a copy of the certificate you were given at the end of the Parenting Through Separation course. If you no longer have your certificate, the Family Court can access the records of who has attended the courses, to confirm that you did attend.
• Attending a Parenting Through Separation course is not a requirement if you are making a without notice application or are unable to participate effectively for example if there are language barriers.

What does the Court take into account?

The overriding principle considered by a court in parenting matters is that the welfare and best interests of the child are paramount.

The court has discretion to look at a number of considerations when determining the best interests of a child under s5 of the Care of Children Act 2004 (COCA), which include:

• The principle of child protection –That the child’s safety should be protected at all times, and he/she should be shielded from all forms of violence by his whanau, family group, iwi, hapu or other persons.
• The principle of the child expressing views and those views being taken account of (Section 6 of the Act).
• The principle of the child’s timeframe –That decisions affecting the child should be made within a timeframe that is appropriate to the child’s sense of time. Delays, whether deliberately caused or otherwise, are considered detrimental to the child and can complicate the situation considerably.
• The principle of the particular emphasis of the child having a continuing relationship with both parents – this is not a guarantee of equal sharing of parenting but will be considered in the context of each child’s individual circumstances.
• The principle of continuity — there should be continuity in arrangements for the care of children and relationships with family and whanau should be stable and ongoing.
• The principle of preserving and strengthening family ties — this is the idea that relationships with the child’s wider family group, iwi, or hapu should be maintained and strengthened.
• The principle of identity — A child’s identity should be preserved and strengthened, including but not limited to his/her religion, culture and language.

Our team will aim to assist you to resolve your family law parenting matter by agreement. We have considerable family law expertise and can assist you with the following:

• to develop a parenting plan or to agree on Consent Parenting Orders.
• where there are urgent issues involving children such as family violence requiring interim parenting orders.
• where there are child protection issues or Oranga Tamariki are involved.
• more complex children’s issues, including relocation disputes where one party wants to move overseas or to another city with the children.
• cases relating to overseas child abduction.
• disputes about guardianship decisions such as which school a child will attend or whether a child should receive a vaccination.
• altruistic surrogacy arrangements and agreements, adoption and parentage/paternity issues.

We will work with you to achieve an outcome that is tailored to the needs of your family and most importantly, is in your children’s best interests.

If you need any assistance, contact one of our lawyers at [email protected] or call (09) 363 2767 for a no-obligation discussion and for expert legal advice.