Care arrangements when parents have separated
Overview of Parenting Orders
What is a Parenting Order?
Parenting Orders are made by the Family Court to decide who will have day-to-day care of a child and who can have contact with a child. They are made as a last resort when parents haven’t been able to agree on things themselves.
However, they’re sometimes also made as “Consent Orders” – this is where the parents have reached an agreement and have asked the court to turn the terms of the agreement into a court order.
You usually won’t be able to apply for a Parenting Order unless you and the other person have already tried to resolve the disagreement through the Family Dispute Resolution process. The person applying must also have attended the Parenting Through Separation course.
What is “day-to-day care” and “contact”?
A person with “day-to-day care” has responsibility for the child’s daily living arrangements, such as where they live, their safety, ensuring they get to school or preschool, and making sure they are properly fed and dressed.
“Contact” refers to how and when the parent or guardian without day-to-day care spends time with the child.
Day-to-day care used to be called “custody,” and contact used to be called “access”. Parenting Orders used to be called “Custody Orders” and “Access Orders”.
No matter who has day-to-day care or contact under a Parenting Order, both parents continue to be guardians of their children (if they were both guardians before they separated).
This means they’re both still responsible for making important decisions about a child’s upbringing together – like what school the child will go to, for example.
What will a Parenting Order cover?
A Parenting Order will set out what the care arrangements for your child will be. It can say who will provide day-to-day care, including whether this will be just one of you or both of you. If both of you will provide day-to-day care, the order can set out the days and times for this.
If only one of you has day-to-day care, the Parenting Order can deal with whether the other person will have contact with the child. This can include when and for how long contact will happen, and any arrangements (usually called “conditions”) that are necessary for that contact. The order can also set out how the contact will happen – for example, whether it will be direct face-to-face contact, or by phone or email instead.
Can a lawyer represent me in a Parenting Order case?
Lawyers can represent you from the start of a care of children dispute in the Family Court. You are also able to access Legal Aid if you qualify for it (see: “Qualifying for family/civil Legal Aid”).
You can have a lawyer represent you in court if you apply under the Care of Children Act for the Family Court to resolve a dispute about care arrangements (a Parenting Order).
You can also hire a lawyer to give you advice in the background (helping you with the application documents, for example), or a lawyer from the Family Legal Advice Service can provide you with background help for free if your income is below a certain amount. Family Legal Advice Service is different from Legal Aid, and even if you don’t qualify for Legal Aid you might qualify for the free Family Legal Advice Service. The income limits for the free Family Legal Advice Service is the same as for the free Family Dispute Resolution service (see: “Do I have to pay for Family Dispute Resolution?”).
You can find a Family Legal Advice Service provider on the Ministry of Justice website, here (or go to justice.govt.nz and search “Find a service to help with disputes”). The Family Court staff will be available to explain how the court’s processes work and what you need to do. You can also access initial free legal advice from your local Community Law Centre. To find your nearest Community Law Centre, go to communitylaw.org.nz/our-law-centres.
Note: The staff at the Family Court can give you information about the court’s processes and what forms and documents you need to complete, but they can’t give you legal advice for your particular case – for example, they can’t advise you about exactly what to write in your application.
Can I get Legal Aid for a Parenting Order case?
What you need to do before you can apply for a Parenting Order
Family Dispute Resolution is usually compulsory
You usually can’t apply for a Parenting Order unless you’ve already tried to resolve the dispute through the Family Dispute Resolution process.
In Family Dispute Resolution, an independent mediator helps parents discuss and try to reach agreement on the issues in dispute (see: “‘Family Dispute Resolution’: Mediation through the Family Court”).
To prove that you have tried Family Dispute Resolution but you could not reach an agreement, you’ll need to include a form that’s been signed by an approved FDR mediator within the last 12 months, stating that:
- the dispute couldn’t be resolved within a reasonable time, or
- Family Dispute Resolution couldn’t be completed because one or both of you weren’t able to participate effectively, or because of family violence or some other reason, or
- Family Dispute Resolution couldn’t be completed because one of you refused to attend or to continue attending.
When you don’t have to go to Family Dispute Resolution
In some situations, you don’t have to have tried Family Dispute Resolution before applying for a Parenting Order – for example:
- if you’re applying for the order in response to the other parent applying for a Parenting Order, or
- if it’s an urgent application (called a “Without Notice” application, because the other parent isn’t told about your application before the judge makes a decision), or
- if you’re applying for a Consent Order (this is where both sides want the same thing and ask the judge to make this into a court order), or
- if care and protection proceedings have started for the child under the Oranga Tamariki Act 1989, or
- if you provide an affidavit (a sworn statement) with your application, giving evidence that at least one of you is unable to participate effectively in Family Dispute Resolution or that the other person has been violent towards you or your child.
Parenting Through Separation course is usually compulsory
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 attended the courses, to confirm that you did attend.
However, you don’t have to attending a Parenting Through Separation course if:
- you’re making an urgent application (a “Without Notice” application), or
- you’re not able to participate effectively in one of the courses – because of language barriers for example (you’ll need to include some kind of evidence for this in your application).
Applying for a Parenting Order
Who can apply for a Parenting Order?
The following people can apply for a Parenting Order:
- a parent of the child
- a guardian of the child
- a spouse or partner of a parent, if they have had day-to-day care of the child
- any other person who is a member of the child’s family, whānau, or other culturally recognised family group, and who the court allows to apply
- any other person who the court allows to apply.
In situations where a parent is dead, has been refused contact with the child by the court, or is making no attempt to have contact with the child, other people are also eligible to apply for a Parenting Order.
These people are:
- the mother or father of the parent who is dead or out of contact with the child
- a brother or sister of that parent
- a brother or sister of the child.
Note: The person who applies for the order is called the “applicant”. The other person is called the “respondent”.
How do I apply for a Parenting Order?
You have to fill out an application pack that contains the application form and other documents you need, and submit this to the Family Court. You can download a copy of the application pack from the Family Court website. Go to justice.govt.nz/careofchildrenform. You can also download the “Applying for a Court Order user guide” that will explain how to fill out your application.
Your application pack includes the following documents:
- Application form – Here you give the court the key information it needs, including who you and the other person are, whether you meet the requirements for applying to the Family Court (for example, you must have tried Family Dispute Resolution or be excused from this), and what you want the court to do.
- Affidavit – Your affidavit is your sworn statement containing your detailed evidence to back up your application (see below for guidance on completing the affidavit).
- Information sheet – Here you include basic details that the court needs, like your contact details and occupation, and the same information for the other person.
Note: When you fill out your application, you can type directly into the documents as PDF files on a computer, and you can then print out the completed documents and file them at the court. You can also print out the blank documents and fill them out by hand.
Completing your affidavit (sworn statement)
The affidavit is similar to the application form, using mainly the same question headings. But the affidavit provides more detail on all these key questions and issues. It covers the following areas:
- “Are you able to make this application?” – Often there are legal requirements you need to meet before you can apply, and this section deals with those requirements. For example, if you’re not someone who’s automatically entitled to apply for a Parenting Order, you have to ask the court for permission to apply, and you’ll need to explain here why it’s in the child’s best interests.
- “Tell the court about the people involved” – Here, you give a brief overview of the relationships and background of the adults and children involved in the case.
- “What do you want the court to do to help?” – You explain in full detail what day-to-day care and/or contact arrangements you’re applying for, what your reasons are, what impact this will have on the child, and why it’s in the child’s best interests.
- “Safety questions” – Here, you give details of any history of family violence or of care and protection issues for the children.
- “Family Court history” – You give details of any other Family Court cases the children have been involved in in the past.
- “Exhibits and extra pages” – Here, you attach any other documents, like emails or letters, to the affidavit.
- “Swearing or affirming” – You must swear or affirm that your affidavit is true and correct. This must be done in front of a registrar or deputy registrar at the Family Court, or a Justice of the Peace, or a lawyer (but not your own lawyer).
You’ll usually only be able to file one affidavit during your case. After the other person has filed their own affidavit in response to you, you’ll need to get a judge’s permission if you want to file a second affidavit to address what the other person has said.
Guidance from the Family Court about completing your affidavit
Your affidavit is a very important part of your application, and it’s important that you make it as strong as possible. The Family Court gives the following guidance for writing your affidavit:
- Stick to the facts
- Information should be relevant to what you are asking the court to do
- It’s always best to include evidence of what you have seen or heard yourself (first-hand information) rather than what someone else has seen or heard (second hand information)
- Try to include specific names, dates and places if you have them
- Everything that you put in your affidavit must be the truth. It is a crime to provide false information
- Extra documents (exhibits) should be attached to the back of the affidavit when you swear or affirm it in front of your authorised witness. If only a small part of an attachment is relevant, for example one paragraph in a thread of several emails, try to highlight this so that the judge knows what’s important.
How much does it cost to apply for a Parenting Order?
An application for a Parenting Order costs $220 (unless you qualify for Legal Aid).
If you’re unable to pay the fee you can ask the Family Court to not make you to pay it (called a fee “waiver”). You’ll get a letter from the court on how to do this and you’ll generally need to do it within 14 days.
What if the Family Court has previously made a Parenting Order?
If a Parenting Order has already been made for your children within the last two years, you can’t take the issue back to the Family Court unless the other person agrees to this or you apply to the court for permission. To get the court’s permission you’ll need to show that the situation has changed in some relevant way (a “material change”).
Responding to an application for a Parenting Order
What can I do if my ex-partner has applied for a Parenting Order?
If you agree with the care arrangements that your ex-partner has proposed, you don’t need to respond if you are happy for the arrangements to be turned into a court order.
If you disagree with the care arrangements that the other person has applied for, you can file a response with the Family Court. You should complete the “Notice of Response” form, and an affidavit (a sworn statement). You can download a copy of these documents from the Ministry of Justice website, here (or go to: justice.govt.nz and search “responding to applications for orders”).
In your affidavit you’ll state:
- what you agree with in the other person’s application (if anything) and what you disagree with
- details and reasons for the care arrangements that you want
- what impact your proposed arrangements would have on the child
- why you think those arrangements are best for them.
Go to justice.govt.nz/careofchildrenform to download the “Applying for a Court Order user guide” that will explain how to fill out affidavits.
You’ll need to swear or affirm that your affidavit is the truth. This must be done in front of a registrar or deputy registrar at the Family Court, or a Justice of the Peace, or a lawyer (but not your own lawyer) (see: “Guidance from the Family Court about completing your affidavit” above).
You have to give a copy of your Notice of Response and affidavit to the other person. You have use the “Address for service” that they’ve given in the Information Sheet that was included in their application.
You have 21 days to give your Notice of Response and affidavit to the court and the other person.
Can I get legal help if I’m responding to a Parenting Order application?
Yes. If you need help with completing your Notice of Response and affidavit, you can ask a lawyer for help. Legal Aid is also available to you if you qualify.
You can also get background legal help from a lawyer at the free Family Legal Advice Service, if your income is below a certain amount. The income limits for the free Family Legal Advice Service is the same as for the free Family Dispute Resolution service (see: “Do I have to pay for Family Dispute Resolution?”).
Family Legal Advice Service is different from Legal Aid, and even if you don’t qualify for Legal Aid you might qualify for the free Family Legal Advice Service.
The Family Court staff will be available to explain how the court’s processes work and what you will need to do. You may be able to access initial free legal advice from your local Community Law Centre.
How the court process works in Parenting Order cases
What happens after I’ve applied for a Parenting Order?
Once you’ve submitted your application, usually a Family Court judge will read it and decide what the next steps in the case should be. The judge will do this in their own office (called “chambers”); you won’t be there for this.
One of the first steps in the court process will usually be an “issues conference,” which you and the other person will both attend. Later the judge may also order a “settlement conference,” to see if the case can be resolved without a court hearing. Both of these are explained in more detail later in this section.
Various other meetings (“conferences”) may also be held before the final court hearing. You may not have to attend all of these; the court will let you know if you have to attend.
Each conference will be run by a Family Court judge. The conferences can be held by telephone or video-conference in some cases. After each conference, you’ll be given a written record of the directions or orders made by the judge at the conference.
Te Kopu Legal have published videos on what it is like in the Family Court if you are going without a lawyer. Even though now you are allowed to have a lawyer represent you in the Family Court, these videos can still prepare you for what the Family Court will be like. Go to youtube.com and search “Te Kopu Legal”.
Is the process the same for all Parenting Order cases?
Most Parenting Order cases follow the process described above – called the “standard track” – where you file the application (giving a copy to the other person), the other person files a response, and the case then begins to progress towards a final court hearing, starting with an issues conference.
The process will be different if it’s an urgent case – these follow the “without notice track” (see: “Urgent cases: The “without notice” track” below).
There’s also a special shorter process – the “simple track”. If you just apply for a Consent Order (which is where both sides agree on the care arrangements and ask the judge to make this into a Court Order), or if the other parent hasn’t responded to your application (see: “The ‘simple track’ where both sides agree” below).
What happens at an issues conference?
An issues conference will be held early on in your case. At an issues conference, the judge will meet with both of you and identify exactly what the issues are. The judge will then decide how your case should best be dealt with.
The judge will speak to you directly to find out what the key disagreements are.
At the end of the conference, the judge will decide that the case will go either to a settlement conference (see below) or to a final court hearing.
What happens at a settlement conference?
The purpose of a settlement conference is to try to reach an agreement so that a court hearing isn’t necessary.
The judge will run the conference. You can ask to bring a support person with you.
If the conference does resolve the dispute (or some of the disputed issues), the judge can make a Consent Order, which is a court order that turns what you’ve agreed into an order that can be enforced by the court. The consent order must then be obeyed like any other court order.
If you and the other person can’t agree, the judge will order the case to go to a court hearing (or order Family Dispute Resolution).
Other steps before the final hearing
- “Directions conference” – Once the judge has ordered that your case will go to a final court hearing, the judge can also order that there will be a directions conference. This is when judge will give any instructions to make sure that the hearing is held as early as possible and that it will be able to decide all the issues.
- “Pre-hearing conference” – This is another conference that may also be held to check in with you and make sure your case is progressing as necessary to go to the court hearing on the scheduled date.
- ”Case management conferences” – More complicated cases may get special supervision from a judge and one or more case management conferences may be held. These can be held at any stage of the case. A case might be considered more complicated if, for example:
- there are claims of serious abuse or violence, or
- the behaviour or personalities of the people involved pose a risk to the child’s safety or well-being, or
- there are particular legal issues that are unusual or difficult.
- Cases can be classified as complex whether they’re on the “standard track” or the “without notice (urgent) track”.
Will a lawyer be appointed for my child?
The Family Court can appoint a lawyer to represent your child if the judge has concerns about the child’s safety or well-being and thinks it is necessary. This lawyer is called “lawyer for the child”.
The role of the lawyer is to act for the child in a way that the lawyer thinks is best for the child’s welfare and best interests. The lawyer will meet with the child to find out their views, and will present those views to the court. The lawyer will also give advice to the child about appealing the Family Court’s decision to a higher court, and must give this advice in a way that’s appropriate to the child’s level of understanding.
If a lawyer is appointed for your child, you and the other parent will usually have to pay two thirds of the lawyer’s fees, in equal shares. But you may not have to pay your share if this would cause serious hardship to you or your children or if you’re getting legal aid.
Urgent cases: The “without notice” track
If yours is an urgent case and you’ve applied “without notice” (that is, without the other person being told about your application), your case will follow the “without notice track”. You can make a “without notice” application if you can show that taking the slower “standard track” could lead to:
- serious injury
- undue hardship
- risk to your personal safety or any of your children’s personal safety (or both)
- your child being taken out of New Zealand without your permission.
Your case will be considered by a judge for the first time without the other person being told and having a chance to respond.
You’re allowed to have a lawyer to represent you and appear with you in court, and Legal Aid is available if you qualify for it.
When the judge considers your “without notice” application they can usually only make an Interim Parenting Order (a temporary order). However, the judge can decide not to make any order without the other person being notified; in that case the judge will say that your case should follow the “standard track”. The process will then be the same as if you’d applied “on notice” at the beginning.
If the judge makes an Interim Parenting Order, the judge will direct that your case go to a hearing for a final decision. The other person will be informed and have a chance to respond to your application. A “directions conference” will be scheduled before a hearing is held, so that the judge can give any instructions to make sure that the hearing is held as early as possible and that it will be able to decide all the issues.
However, after the judge makes the Interim Order they can transfer your case to the slower “standard track” or order you and the other person to go to Family Dispute Resolution.
The judge can classify a complicated “without notice” case as “complex” – this allows them to manage it more closely, including holding one or more case management conferences (see: “Other steps before the final hearing” below).
The “simple track”: where both sides agree
There’s a special simplified process, the “simple track,” if you’ve just applied for a Consent Order (which is where both sides want the same thing and ask the judge to make this into a court order), or if the other parent hasn’t responded to your application or has filed a response after the time limit.
The judge will consider your application in their chambers (offices) without you being present. This will be done usually within two weeks after you apply. The judge will usually make a final order at that point.
The court hearing: How the judge decides what to do
The judge’s decision
Once your case goes to a court hearing (a “defended hearing”), the decision is in the hands of the judge.
At the hearing, the judge will hear evidence (usually from the two parents and any witnesses they bring) and will then decide what the care arrangements for your child will be. At this stage of the case you can have a lawyer represent you. The Family Court is allowed to accept a wide variety of evidence, including evidence that wouldn’t be allowed in other courts.
The most important factor in the judge’s decision must be the child’s wellbeing and best interests (see below).
The judge will take into account what the child wants to happen, if the child has a view on this. In some cases, the judge will have appointed a lawyer to represent the child and convey the child’s views to the court.
Coming to an agreement outside of the court
You and the other person can still settle the dispute on your own, even after the court hearing has begun. You can do this at any time up until the judge gives a decision at the end of the case.
You can then ask the court to formalise your agreement into a “Consent Order”.
The most important factor: The welfare and best interests of the child
When the Family Court is deciding about care arrangements for a child, the first and most important factor is the wellbeing and best interests of the child.
The court must follow these specific guidelines:
- decisions affecting the child should be made and put into effect within a timeframe that’s appropriate to the child’s sense of time
- the child must be kept safe and protected from all forms of violence from all people, including from family members
- if there is, or has ever been, a family violence Protection Order (whether temporary or final) in force against one of the parents, then the judge must specifically take into account:
- whether the Protection Order is still in force against them
- the circumstances in which the order was made
- any written reasons given by the judge who made the Protection Order, and
- any convictions against the parent for an offence involving family violence or for breaching a Protection Order
- the child’s parents and guardians should have the main responsibility for the child’s care, development, and upbringing
- there should be ongoing consultation and co-operation between the child’s parents and guardians and any other people who have a role in the care of the child
- there should be consistency in the arrangements for the child’s care, development and upbringing
- the child should continue to have a relationship with both parents, and the child’s relationships with family or whānau should be preserved and strengthened
- the child’s identity, including culture, language and religion, should be preserved and strengthened.
In some cases, a Parenting Order will say that any contact with a particular parent must be supervised.
Taking account of the child’s views
The child must be given a chance to say what they think and want, for example, who they should live with. They can tell the judge directly, or through a lawyer for the child.
The judge must take these views into account when deciding the case.
Reports from social workers, doctors and other specialists
To help make a decision, the Family Court can ask for a written report about the child from a specialist, such as a social worker, a medical doctor, or cultural advisor who can report on some aspect of the child’s culture (including their religion).
The parents will usually have to pay two thirds of the cost of these reports, in equal shares. However, you may not have to pay your share if this would cause serious hardship to you or your children or you qualify for legal aid.
Types of care arrangements that can be ordered
What types of arrangements can the judge order?
There are many options for how a Parenting Order can set out the care arrangements for a child. Sometimes parents will share the day-to-day care of their child equally, sometimes one parent may provide more of the day-to-day care, and in other situations one parent will have day-to-day care for the child and the other will have contact.
The Care of Children Act recognises the importance of both parents being involved in the child’s life and so the Family Court will make arrangements that will allow the child to have an ongoing relationship with both parents, unless this is not in the child’s best interests. The Act recognises a child’s relationship with wider family and whānau should be preserved and strengthened, so a Parenting Order may also set out how these relationships can continue through contact with the child.
A Parenting Order can also deal with things like drop-off and pick-up arrangements and how care will be shared during holiday periods and for special events such as birthdays.
Supervised contact when children are at risk
If the judge making a Parenting Order does not believe that the child would be safe with a parent, the judge can order that any contact between the child and that parent must be supervised.
Supervised contact means that contact is overseen by an approved organisation, or by a person approved by the court, such as a relative or family friend. It means that contact will happen in a safe, controlled situation. If the contact is supervised by an approved organisation, this is paid for by the government.
Breaches of Parenting Orders
What happens if a Parenting Order is not followed?
If a person doesn’t follow the conditions of a Parenting Order, the Family Court has a number of ways it can enforce the order.
The parties are firstly encouraged to try to resolve the matter themselves, sometimes with the help of lawyers, including lawyer for the child.
If they can’t resolve things, the court can make orders to deal with the breach. The court must consider whether the action it takes will be in the best interests of the child and must only make an order as a last resort. The types of things the court may do include:
- give a formal reprimand or telling off to the person breaching the Parenting Order
- change or cancel the Parenting Order
- require the person not following the order to pay a bond, which they may lose if they continue to not follow the order
- require the person not following the order to pay compensation (money) to the other person for any reasonable costs they incurred as a result (for example, childcare costs that they had to pay when the other parent was supposed to be caring for the children, or for court costs)
- issue a warrant enforcing the day-to-day care or contact arrangements outlined in the Parenting Order. This can involve the police or a social worker removing the children from the person not following the order and delivering them to the other parent.
Criminal penalties for breaching a Parenting Order
It is a criminal offence to intentionally breach (not follow) a Parenting Order without a reasonable excuse. A person who does this can be jailed for up to three months, or fined up to $2,500.