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Prisoner's rights

Family matters

Parenting rights

What is “day to day care”?

Day to day care is the right and responsibility of looking after your children day to day, deciding what they eat, wear and do every day. It used to be called “custody”.

What is “contact”?

Contact is a visit, phone call, or other contact with your child. It can be supervised or unsupervised. It used to be known as “access”.

What is “guardianship”?

Guardianship is the right and responsibility to be involved in the most important decisions affecting your child’s life, such as agreeing to surgery, choosing a school, religion, and where they live.

Am I a “guardian”?

Care of Children Act 2004, ss 17-19

All mothers are natural guardians of their children (except when the Family Court removes a guardian, but that is very rare). The father is a guardian if he was living with the mother when the child was born. He is also a guardian if he is married to the mother or if he is on the birth certificate. Other fathers can apply for guardianship through the Family Court, as can other relatives and significant adults and Oranga Tamariki (used to be called “Child, Youth and Family” or “CYFS”).

Can my child visit me while I’m in prison?

Yes, your child can visit you through the usual visitors’ process. You can initiate the process by talking to your PCO. A form will be sent to the child’s guardian as all children (17 and under) need to get a letter from their guardian if they want to visit. If you are the sole legal guardian then your child can explain on the form that you are the guardian.

If the guardian is not available, or the guardian is not appropriate to provide consent for the visit, then the form can be sent to any other adult that would be appropriate to provide consent in the circumstances (this may mean the child can provide their own consent).

Approval for visits from children can take up to 6 weeks to be approved so you should start the process as soon as possible.

The guardian of your child or other suitable adult can call the Department of Corrections, directly to the prison reception of the prison that you’re in, or the nearest Community Law Centre to get help with this process.

Can I choose who looks after my children while I am in prison?

If you are your child’s only guardian and you have day to day care before going to prison, then yes you can. Your lawyer should tell you if there is a chance of a prison sentence and this will give you time to make arrangements for someone to take care of your child. However, Oranga Tamariki (formerly Child, Youth and Family – CYFs) may get involved if they think the person you have chosen is not suitable.

It may be harder if your child has more than one guardian. Other guardians have the right to be involved in deciding who will take care of your child. If there’s disagreement about where your child should live, you may need to use the dispute resolution options mentioned later in this chapter.

For more information, see below “Resolving disagreements: The Family Court process”

What can I do if I don’t want a particular person looking after my child?

Care of Children Act 2004, ss 27, 47, 48

A guardian or another person who doesn’t agree with your plan for your child may apply to the Family Court for a Parenting Order to give them day to day care. (They might have to start a Family Dispute Resolution process first) If the person is not a parent they will need the Court’s permission to apply. The Court will investigate and make sure that they are a suitable person.

If this happens, you can oppose the application for day to day care. You must have another suggestion about where the child should live. You must also give reasons to explain why the person applying for day to day care is not suitable and why your suggestion is better.

For more information, see below “Resolving disagreements: The Family Court process”

What can I do if I think my child is at risk from their present caregiver?

Care of Children Act 2004, ss 27, 29, 47, 48

If you think your child is not safe, you have several options. Whichever option you choose, the outcome will be best if you arrange a good, safe situation for your child to live in.

  • You can communicate with the caregiver and try to get them to agree to move the child to a different, safe situation that you have arranged.
  • You can get a grandparent or someone else you trust to apply to the Family Court for day-to-day care of your child. The court will grant them leave to apply if you are supporting their application. The person you have chosen will need to explain why they are more suitable than the current caregiver. If the caregiver has been violent, your person can also apply for a Protection Order to stop the caregiver from having contact with the child.
  • For more information, see “Getting a Protection Order” in this chapter
  • If your child is in immediate danger and you can’t work out a plan to get family on the outside to safely look after the child, you can notify the police or Oranga Tamariki (or get someone closer to the situation to notify Oranga Tamariki – 0508 326 459). Try to gather as much information as possible, ring their school, get people you know and trust on the outside to gather evidence to give to Oranga Tamariki. Remember that getting Oranga Tamariki involved in your child’s life can have a significant impact on your child.
  • For more information, see “Oranga Tamariki Care and Protection” in this chapter

How do I get my child back when I’m released?

It depends if there is an informal or formal arrangement with the other caregiver. It will be informal if there are no Family Court orders. You can call the Family Court on 0800 224 733 to ask if there are any orders or applications about your child.

Informal arrangement (no Family Court Order)

If there is an informal arrangement with someone who is not the other parent, you can go and get your child back straight away. It’s best to talk to the caregiver first and get their agreement to the child being returned to your care.

If the caregiver refuses to let the child go with you, you should get legal advice. You have the stronger legal right to have your child with you, but you need to consider whether the other caregiver will go to court to keep the child. The court will always look at what is in the best interests of the child, and you need to think about whether it is in your child’s best interests to change homes suddenly.

If you have an informal arrangement with the other parent of the child, it is best not to take the child straight away as the other parent could go to the Family Court and file an urgent application. It is better to try to come to an agreement with the other parent if possible. If you can’t agree, see “Resolving disagreements: The Family Court Process”

Formal arrangement (Family Court Order)

If there is a formal arrangement you will need to go through the Family Court process (see below) to agree a new arrangement or to get a different Court Order.

Resolving disagreements: The Family Court Process

How does the Family Court work?

In the Family Court, the welfare and best interests of children is seen as the most important thing. So you need to show that you are focused on plans that will work for your child (which is not necessarily what’s fair or best for you).

You can get more information about the Family Court process from Community Law Centres or from the Family Court (0800 224 733).

Parenting Through Separation course

This is a free course that most parents have to do before they can apply for a Family Court order. (It is a course with other separated parents and caregivers – not with your ex.) It is not yet available in prisons as far as we know (but ask your Corrections Officer). You might be able to apply for Temporary Release to do the course. If not, you may be able to be excused from attending and do so at a later date.

Family Dispute Resolution (“mediation”)

Before applying to the Family Court to ask for a Court Order about parenting, most parents have to go through Family Dispute Resolution (FDR). FDR is a meeting (maybe by video link or Skype) between the parents or guardians who can’t agree. It is free to people on low incomes. The providers’ phone numbers are:

  • Fairway 0800 774 422
  • Familyworks Upper North Island 0800 737 6583
  • Familyworks Lower North Island & South 0800 337 100
  • Upper North Island 0800 7376583
  • Lower North Island and South Island 0800 337 100

They might be able to arrange mediations even though you are in prison. If they can’t mediate, they can give you a certificate to show that you tried to arrange a mediation.

If you are thinking about making an application to the Family Court, you may be able to get some free advice from a family lawyer through FLAS (Family Legal Advice Service). The lawyer will be able to tell you about whether you need to go through Family Dispute Resolution.

Local lawyers who offer the Family Legal Advice Service are listed on the Family Court “Find a Service Provider” webpage. Go to www.justice.govt.nz, and search “find a service to help with disputes”. You can call your local Community Law Centre if you get stuck.

Family Court

Family Court is generally the last resort, if you can’t reach an agreement and need the court to decide for you. However, you can go straight to Family Court if the matter is very urgent (if your child is not safe, or if your child might be taken out of the country, for example) or if mediation would not be safe (if you are not safe with the other parent).

Will I get a lawyer in Family Court?

You are allowed a lawyer for more complex family cases. It is possible to represent yourself in the Family Court, but you can also apply for legal aid to have a lawyer represent you. You can pay for a private lawyer to assist you if you can afford to do so.

What does “best interests” mean?

Care of Children Act 2004, ss 4, 5, 6

If there is a Family Court hearing, the Court will focus on the welfare and “best interests” of your child. The court will have to decide whether having the child in your care (or someone else’s) would be in the child’s best interests.

The court will want to know:

  • What the child wants: the older they are, the more important this is.
  • The history of care: who usually looked after them? If both parents did, the length of time they were the child’s main caregiver can be important.
  • The standard of care: when you had them were they well looked after? Did you spend a lot of quality time with them?
  • Risks of being in your care: was there any risk of abuse, neglect etc.?
  • Economic circumstances and stability: can you provide a home, food, regular routine etc. For the child?
  • Your attitude to the other caregiver/parent: can you maintain the child’s relationship with them?
  • The ability of the parents and caregivers to work together.

The court may also get the school’s views (if your child is old enough to be going to school). Who has the history of involvement? Who attended parent teacher meetings, made sure they had lunch, that they were there on time, that their homework was done etc.?

The court can also ask for a specialist report from a social worker, psychologist, psychiatrist or medical doctor. The purpose of the report is to obtain information about your child. The specialist may speak with you, the caregiver and your child. This can help the court reach its decision as to who your child would be better off with.

Will the age of my child and/or the length of my sentence affect my chances of getting them back?

If your child is quite young (say 6 months to 2 years old) when you go to prison, then yes it can. It will be hard for them to remember who you are. They are likely to form a bond with the person looking after them. Similarly if you are in prison for a long time your child is likely to become attached to the caregiver and the community they are with. If this happens, the court may not think that it’s in the best interests of the child to give you day to day care.

The best thing you can do is make the effort to keep in contact with your child as often as you can while you are in prison. This will allow the child to have a bond with you as well.

If your child has lost touch with you, you could begin a gradual process of getting familiar again. If you don’t have day to day care when you leave prison, the court can give you contact. This will give your child time to get used to you and to re-establish a parent-child relationship.

However, there are no guarantees that you will get your child back, even if you do these things. It will definitely improve your chances but it’s ultimately up to the court and what they believe is in your child’s best interests.

Is the court likely to give me day to day care of my child straightaway?

Care of Children Act 2004, s 48

No, not usually. Even if you have a good case for getting them back, you will have been away from your child for a long period of time. It may be difficult for the child to be handed straight back to you. This may depend on the amount of contact you have had with them while you were in prison.

The court will almost definitely give you contact. This will allow you to re-establish the relationship with your child, so you can aim to eventually get them back. Depending on the circumstances the contact may be supervised.

Is there anything I can do while I am in prison that will help?

If you think you are going to have problems agreeing on parenting, it is usually a good idea to start dealing with them while in prison. Parenting disputes can be lengthy.

You can apply for legal aid while in prison (but only for parts of the process where lawyers are allowed – see the information above about the Family Legal Advice Service). If you are imprisoned a long way from your child, it’s possible legal aid can be transferred. Talk to a Family Court lawyer about this when filling in the Legal Aid form. You can make an application for day to day care to come into effect just after your release date.

What can I do if the caregiver won’t let my child visit me or write to me?

You could go through the Family Court process (above) and apply for a Parenting Order for contact. If successful, your child can be brought to the prison for a visit. You must show that there is a workable arrangement (that means someone is willing to get your child to and from the prison). If your child lives a long way from the prison, then it is not fair to expect the caregiver to do this because of the cost and inconvenience of the travel and accommodation. It is a different situation if the child is in the same town or close by. However, the judge may find that visiting prison will be harmful for the child.

You can request phone calls and request that the child be encouraged to write to you.

Always keep a record of your attempts to maintain contact. As the child’s guardian you have the right to information so you can make informed decisions about their upbringing. If you are not getting any information or having any contact, this may count strongly against the caregiver in a day to day care dispute.

For more information, see the chapter “Visits, phone calls and mail: Communicating with people outside prison

My children are moving to a different town and they won’t be able to visit. Can I stop this from happening?

Where your children live is a “guardianship” issue, and you are entitled to have a say. If you and the other parent or guardians can’t agree, then you can go through the Family Court process described above.

I’ve been transferred to a different prison and my family can’t visit anymore. What can I do?

You may be able to get a transfer. See the chapter “Transfers

You could ask the other parent if they would consider moving to stay nearer you. If they won’t, it is technically possible to ask the Family Court to order that the children come to live nearer you, but the Family Court would only order that if they thought a move would be best for the children.

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