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 these 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.
Note: 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 Court’s “Family Dispute Resolution” process. The person applying must also have attended the Family Court’s “Parenting Through Separation” course. (See below in this section, “Compulsory steps before you can apply for a Parenting Order”.)
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”.
Note: 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.
What issues will a Parenting Order cover?
A Parenting Order will set out what the care arrangements for your child will be. It can specify 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 specify the relevant 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 or desirable to facilitate that contact. The order can also specify how the contact will happen – for example, whether it will be direct face-to-face contact, or by phone or email instead.
Can I have a lawyer represent me in a Parenting Order case?
New rules came into effect on 1 July 2020 that allows lawyers to represent you at 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. For more information about accessing Legal Aid, see the chapter “Legal Aid and other legal help”.
Previously, for cases under the Care of Children Act, you were only allowed to have a lawyer represent you and appear with you in court for certain types of cases or for particular stages of your case.
Since the new rules have come in, 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 have a lawyer represent you in court.
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. The Family Court staff will also 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.
Note: The staff at the Family Court can give you information about the court’s processes and what forms and documents you will 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?
If you take a dispute about care arrangements to the Family Court, Legal Aid is now available for you if you qualify for it (see the chapter “Legal Aid and other legal help“). 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 (to help you with your application, for example). 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 to use Family Dispute Resolution?” earlier in this chapter.
Compulsory steps 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 attempted to resolve the dispute through the Family Dispute Resolution process.
In Family Dispute Resolution, an independent mediator helps the parents discuss and try to reach agreement on the issues in dispute (see “‘Family Dispute Resolution’: Mediation through the Family Court” in this chapter).
Note: Family Dispute Resolution was introduced in March 2014, replacing the counselling and mediation services that had previously been provided free to all people taking disputes to the Family Court.
To prove that Family Dispute Resolution has been tried, 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
- that it was inappropriate to start or continue Family Dispute Resolution because one or both of you wasn’t able to participate effectively, or because of family violence or some other reason, or
- that it was inappropriate to start or continue Family Dispute Resolution because one of you refused to attend or to continue attending.
When Family Dispute Resolution isn’t compulsory
In some situations, you’re not required to have attempted 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 been 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 (see above in this section, “‘Parenting Through Separation’ courses”).
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’s attended the courses, to confirm that you did attend.
Attending a Parenting Through Separation course isn’t a requirement 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 is given permission by the court to apply
- any other person who is given permission by the court 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 must complete a special application pack consisting of the application form and other key documents, and file this with the Family Court. You can download a copy of the application pack from the Family Court website (www.justice.govt.nz/family-justice).
Your application pack includes the following core 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 administrative 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. Alternatively, you can print out the blank documents and fill them out by hand. But the Family Court prefers you to complete them as PDFs.
Completing your affidavit (sworn statement)
The affidavit follows a similar structure 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 children’s best interests that you be allowed to apply.
- “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 crucial 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 true and correct to the best of your knowledge and belief. 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 not to require you to pay it (called a fee “waiver”). You’ll need to show that you’re dependent on a benefit or completely dependent on New Zealand superannuation or a veteran’s pension, or that you’d suffer “undue financial hardship” if you had to pay the fee.
Note: It doesn’t cost you anything to apply for a Protection Order from the Family Court under the Family Violence Act. However, if you’re also applying for a Parenting Order (whether the application is urgent or not), you’ll have to pay the Parenting Order application fee when you apply. The Family Court can make an order about who has day-to-day care of the child even if a Parenting Order application hasn’t been made. The person would then need to apply for a Parenting Order as soon as practicable.
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 the court gives permission. To get the court’s permission you’ll need to show that circumstances have changed in some relevant way (a “material change”).
Judge can make a temporary Protection Order under family violence laws
If you’ve applied for a Parenting Order, the judge can also make a temporary Protection Order against family violence if they think this is necessary. To find out how temporary Protection Orders can become final, see the chapter “Family violence and elder abuse”.
Responding to an application for a Parenting Order
What can I do if my ex-partner has applied for a Parenting 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 also an affidavit (a sworn statement) to provide detailed evidence in support of what you want to happen. You can download a copy of these documents from the Family Court website (www.justice.govt.nz/family-justice).
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 children
- why you think those arrangements are best for them.
To read the Family Court’s general guidance on completing affidavits, see above in this section, “Applying for a Parenting Order / Guidance on completing your affidavit (sworn statement)”.
You’ll need to 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 must give a copy of your Notice of Response and affidavit to the other person. You must use the “Address for service” that they’ve given in the Information Sheet that was included in their application.
You have 21 days to file your Notice of Response and affidavit with the court and serve it on the other person.
Can I get legal help if I’m responding to an application for a Parenting Order?
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 to use Family Dispute Resolution?” earlier in this chapter,
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 also 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 filed your application, usually a Family Court Judge will consider it and decide what the next steps in the case should be. The judge will do this in his or her own office (called “chambers”); you won’t be present 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 (see below, “What happens at an issues conference?”). Later the judge may also order a “settlement conference”, to see if the case can be resolved without a court hearing (see below, “What happens at a settlement conference?”). 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.
Will the process be the same for all Parenting Order cases?
Most Parenting Order cases follow the process summarised above – called the “standard track” – where you file the application (giving a copy to the other person), the other person then 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, however, if it’s an urgent case – these follow the “without notice track” (see below “What happens in urgent cases?”).
There’s also a special simplified process – the “simple track” – if you’ve merely 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 (see below, “The ‘simple track’ where both sides agree”).
What happens at an issues conference?
An issues conference will be held early on in your case, unless the judge directs you to Family Dispute Resolution first (see below, “Directions for counselling and Family Dispute Resolution in some cases”). The purpose of an issues conference is for the judge to meet with both of you and identify exactly what the disputed issues are. The judge can then make various directions for 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 direct 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 agreement on the issues in dispute (or some of them), so that a court hearing isn’t necessary.
The judge will run the conference. You can ask to bring a support person with you, and the judge must allow this unless there’s a good reason not to.
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 gives effect to what you’ve agreed. 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
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”. There the judge will give any directions necessary to make sure that the hearing is held as early as possible and that it will be able to decide all the issues. A “pre-hearing conference” may also be held to make sure your case is progressing as necessary to go to the court hearing on the scheduled date.
Particularly complex cases may get special supervision from a judge and, as part of this, one or more “case management conferences” may be held. These can be held at any stage of the case.
A case might be classified as complex if, for example, there are claims of serious abuse or violence, or if the behaviour or personalities of the people involved pose a risk to the child’s safety or well-being, or if there are particular legal, technical or evidentiary issues that are unusual or difficult. You yourself can ask the court to hold a case management conference; judges can also decide to hold one on their own initiative.
Cases can be classified as complex whether they’re on the “standard track” or the “without notice (urgent) track” (see below, “What happens in urgent cases?”).
Directions for counselling or Family Dispute Resolution in some cases
If you’ve applied for a Parenting Order the judge can order you and the other person to attend free counselling, if the judge thinks this will improve your relationship or will encourage you to comply with an order or direction that the court has made.
The judge can also order you to go to Family Dispute Resolution, if yours is one of those cases where going to FDR isn’t a precondition for applying to the court. If you have already been to FDR in the last 12 months, the judge can put your case on hold so that you can go to FDR again, but only if both sides agree to this.
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 the appointment is necessary. This lawyer is called “lawyer for the child”.
The role of the lawyer will be to act for the child in a way that the lawyer thinks promotes the child’s welfare and best interests. The lawyer will meet with the child to find out his or her 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.
What happens in urgent cases?
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”. Here your case will be considered by a judge for the first time without the other person being told about your application and having a chance to file a response.
You’re allowed to have a lawyer to represent you and appear with you in court, and Legal Aid is available for this if you qualify for it.
When the judge considers your “without notice” application the judge can usually only make an interim (temporary) Parenting Order. However, the judge can decide that it’s not appropriate to make any order without the other person being notified; in that case the judge will direct that your case should follow the “standard track”. The process will then be the same as if you’d applied “on notice” at the outset.
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 directions necessary to make sure that the hearing is held as early as possible and that it will be able to decide all the issues.
However, when the judge makes the interim order they can instead transfer your case to the slower “standard track” or order you and the other person to go to Family Dispute Resolution.
As with cases on the standard track, the judge can classify a without notice case as “complex” – this allows them to manage it more closely, including holding one or more case management conferences (see above, “Other steps before the final hearing”).
The “simple track” where both sides agree
There’s a special simplified process – the “simple track” – if you’ve merely 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 his or her chambers (offices) without you being present. This will be done within two weeks after you apply, if this is reasonably practicable. 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.
However, even after the court hearing has begun you and the other person can still settle the dispute – you can do this at any time up until the judge gives a decision at the end of the case.
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 to 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 welfare and best interests. The judge must also take a number of specific principles into account when deciding exactly what arrangements would be in the child’s welfare and best interests (see below, “The most important factor: The welfare and best interests of the child”).
The judge will take into account what the child wants to happen, if the child has a view on this (see below, “Taking account of the child’s views”). In some cases, the judge will have appointed a lawyer to represent the child and convey the child’s views to the court (see above, “Will a lawyer be appointed for my child?”).
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 welfare and best interests of the child.
When it’s considering what arrangement would be in the child’s welfare and best interests, the court must take the following specific principles into account:
- decisions affecting the child should be made and put into effect within a timeframe that’s appropriate to that child’s sense of time
- the child must be kept safe and be 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 the following issues:
- 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.
In some cases, a Parenting Order will direct that any contact with a particular parent must be supervised (see below, “Types of care arrangements that can be ordered / Supervised contact when children are at risk”)
- 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 under a Parenting Order or guardianship order
- there should be continuity 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 his or her family or whānau should be preserved and strengthened
- the child’s identity, including his or her culture, language and religion, should be preserved and strengthened.
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 convey this to the judge directly, or through a lawyer appointed 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 it 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 court can also ask a psychologist to report on the child’s psychological needs and how their welfare and best interests can be met.
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.
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 enable the child to have an ongoing relationship with both parents, unless this is not in the child’s best interests. The Act also recognises that a child’s relationship with wider family and whānau should be preserved and strengthened, so a Parenting Order may also specify what contact will occur to enable these relationships to continue.
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 a judge making a Parenting Order is deciding about contact with a particular parent and isn’t satisfied that the child would be safe with that 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 (see “Where to go for more support” at the end of this chapter), or by a suitable 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 breached?
If a person breaches 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 a range of orders to deal with the breach. The court must consider whether the action it takes will be in the welfare and best interests of the child and must only make an order as a last resort. The types of things the court may do are:
- give a formal reprimand or telling off to the person breaching the Parenting Order
- change or cancel the Parenting Order, for example, by reducing the amount of time the person breaching the order spends with the child.
- require the person breaching the order to pay a bond, which they may lose if they continue to breach the order
- require the person breaching the order to pay compensation to the other party for any reasonable costs they incurred as a result of the breach. For example, the court may decide that it is reasonable to reimburse a person for childcare costs incurred during the time period when the person breaching the order was supposed to be caring for the children, or for court costs incurred
- issue a warrant enforcing the day-to-day care or contact arrangements provided for in the Parenting Order. This can involve the police or a social worker removing the children from the person breaching the order and delivering them to the other party.
Criminal penalties for breaching a Parenting Order
It is a criminal offence to intentionally breach 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.