The Care of Children Act 2004 sets out how decisions should be made regarding the day-to-day care and guardianship of children when their parents separate. The Act makes the welfare of the child the top priority.
If my spouse and I split up, what rights will I have regarding how our children are brought up?
Who can be a child’s guardian?
What does the term "day-to-day care" mean and how is it arranged?
What happens if we can't agree on our child's day-to-day care?
What happens if I apply for a Parenting Order?
What can I do if I disagree with the parenting order?
Can I get legal aid to help cover the cost of getting a lawyer for the parenting order hearing?
My partner wants us to separate, and is threatening to take my son overseas and never come back. What can I do?
What can I do if my son and daughter-in-law won’t let me visit my grandchildren?
My parents are splitting up. Do I get any say about who I’m going to live with?
I’m over 16 years old and want to live with my Aunty and Uncle, not my Mum or Dad (they are separated). Can I do this?
If my spouse and I split up, what rights will I have regarding how our children are brought up?
Generally, both parents are their children’s guardians and therefore both are responsible for their children’s upbringing and day-to-day care. You can read Who can be a child’s guardian? for more details about guardianship.
If you separate, you’ll need to try to agree on your children’s day-to-day care (a parenting agreement). You can get free counselling session through the Family Court to help, if you can’t come to an agreement. If this doesn’t work, one of you can apply for a parenting order, which involves going to the Family Court and asking them to make a decision for you.
For more details, read on.
Who can be a child’s guardian?
The guardians of a child can be:
- The natural mother and father of a child (the mother is automatically a guardian of the child, the father's guardianship depends on whether he was married to or living with the mother around the time of the child's conception and birth, and whether his name is on the birth certificate. Check the Family Court website for more details)
- Someone appointed by another guardian to take over if he or she dies (this person is called a testamentary guardian)
- Someone appointed by the Family Court
If there is a dispute between guardians about something to do with guardianship, they can apply to the Family Court for guidance.
Guardianship ends when the child turns 18, or if a child aged 16 or 17 marries or enters a civil union (with their guardian’s permission).
What does the term "day-to-day care" mean and how is it arranged?
The Family Court now uses the term "day-to-day care" to replace the term "custody".
Having day-to-day care of a child means that the child lives with you on a daily basis and you are responsible for their wellbeing and getting to school,
If you and your spouse break up, you should both try to agree on
- the day-to-day care of your child - e.g. they might spend a week living with each parent, or they might mainly live with one parent and spend their school holidays with the other parent, and
- the contact arrangements – if only one parent has the day-to-day care of the child, these arrangements allow for the child to spend time with the other parent. (This used to be called “access”).
It's important to put your child's needs first – this is required under the Care of Children Act - so involve them in the discussion if possible.
The arrangement doesn't have to be in writing, but a written agreement can be made into a court order which might be useful if it is disputed later on. This is called a parenting agreement.
Most parents who separate will sort out their children's day-to-day care together, without needing to go to Family Court.
What happens if we can't agree on our child's day-to-day care?
If you can’t agree on the day-to-day care or contact arrangements, you can ask someone to help who won't take sides, such as a counsellor. You can get free counselling sessions through the Family Court.
You can ask your lawyer to apply for the counselling sessions for you, or you can do it yourself by filling in a form. Application forms are available at the Family Court and on the Family Court website.
You’ll get six counselling sessions; these are provided by a qualified professional and are held at their own office. More information about counselling through the Family Court is on their website.
If all else fails you can to apply for a Parenting Order from the Family Court. This is a type of court order in which a judge decides who gets day-to-day care of the child, and who can have contact with the child.
A Parenting Order can be enforced by the Court, however going to court can take a long time and be emotionally and financially draining for the family.You can actually apply for a Parenting Order at any time, but if you haven't already tried counselling the Court will ask you to do that first.
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What happens if I apply for a Parenting Order?
It’s a good idea to get a lawyer if you are going to apply for a Parenting Order. They can give you advice on how the process works and what to do.
The Family Court will usually arrange counselling sessions for both parents, if you haven’t already had these.
If the counselling doesn’t work, you’ll be referred to mediation, where either a Family Court judge or a professional mediator will help you come to an agreement.
If mediation does not work, the Family Court will appoint a “lawyer for the child”. The lawyer will meet with your child and represent their interests at the hearing (this is when the Judge considers the information presented and makes a decision).
The judge makes a decision about the day-to-day care and contact arrangements for the child (a parenting order).
There are some situations where the Family Court will not arrange for counselling or mediation prior to a hearing, such as where one parent has been violent.
What can I do if I disagree with the parenting order?
You can challenge a parenting order by making an appeal to the High Court. But in the meantime you’ll have to comply with its conditions.
Breaching a parenting order is a criminal offence and could result in up to three months’ prison or a $2500 fine.
Can I get legal aid to help cover the cost of getting a lawyer for the Parenting Order hearing?
Legal aid may be available if you can’t afford a lawyer. Read our information about legal aid.
My partner wants us to separate, and is threatening to take our child overseas and never come back. What can I do?
If your partner is threatening to take your child overseas, how you proceed will depend on how likely it is to happen, whether or not it is possible to resolve the situation by talking to your partner, and what action (if any) you are prepared to take.
It’s possible that the threat was made out of anger, and your partner is not seriously planning to take your child away. If you think this is the case, you could try talking things over with them again in a calmer atmosphere. If you know you have sufficient time, you can apply for counselling services to try and reach a reasonable agreement.
If the two of you are unable to agree on care arrangements for your child, even with the help of a counsellor, you can apply for a Parenting Order. This is a Family Court order which decides who is responsible for the day-to-day care of a child (which used to be called “custody”) and who can have contact with the child (this used to be called “access”).
If you are concerned that your partner might remove your child from New Zealand in breach of a Parenting Order, you can ask the Family Court, District Court or High Court for an Order Preventing Removal. You can also apply for an Order Preventing Removal if you don't have a parenting order yet, but have applied for one or are about to.
It’s important that you apply to the Court quickly, because once your child leaves New Zealand, they become subject to the laws of other countries or to international laws.
If your case is urgent, you can apply to the Court without consulting your partner, and the Court may make an order within a few hours. Otherwise, they will receive a copy of your application and have a chance to argue against it.
If the Order Preventing Removal is granted:
- the Court may:
- have the child placed with a suitable person until the Court can deal with the case further
- order that the child's passport be handed over to them
- order the other parent to hand over their travel tickets
- you can ask to have your child's details entered onto the Customs Service computer system for passengers (CAPPS), so your child can be stopped from leaving any NZ international airport by Customs officers
You should consult your lawyer, who can advise you on the best way to deal with your situation. Legal aid may be available if you take the matter to Family Court.
Removing a child from the country in breach of a parenting order is a criminal offence which could lead to a sentence of three months in prison or a fine of up to $2500.
More information is in a Ministry of Justice guide to Preventing children being removed from New Zealand. There are also 
tips for working out the arrangements for your children.
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What can I do if my son and daughter-in-law won’t let me visit my grandchildren?
Sometimes, when the relationship between grandparents and their own child (or child’s partner) is not good, the grandparents may be denied access to their grandchildren.
If you are a grandparent in this situation, try having a calm discussion with the parent/s to see whether you can reach an understanding and some sort of agreement or compromise that works for everyone, and takes into account the children’s wishes and welfare.
If a discussion is not possible or has not worked, you can ask the Family Court for permission to apply for contact with your grandchildren. The Family Court may refer you to counselling and mediation, and may also appoint a lawyer to represent the grandchildren (called a “lawyer for the child”).
It would be a good idea to get legal advice if you are considering this option. You may be able to get legal aid for this process if you can’t afford a lawyer.
My parents are splitting up. Do I get any say about who I’m going to live with?
You should talk to your parents about your feelings, and try to get them to understand what you want to do in this difficult situation.
Under the Care of Children Act, you have the legal right to have a say in the matter, and any views you express must be taken into account when a decision is made. Your parents have to consider your wishes and your needs when they make arrangements for your day-to-day care after the separation. But if you are aged under 16 years, you can’t decide whom you will live with.
If your parents are having trouble agreeing on who you’ll live with and apply for a parenting order, you’ll be appointed a lawyer (called a “lawyer for the child”) by the Family Court. Depending on your age, maturity, and ability to express your views in court, your lawyer will:
- Represent or guide you during the Court process and any negotiations between you and your parents
- Find out your views, and advise you on how to express them
- Explain the Court process to you, and explain the Judge’s decision
You also have the right to appeal against any Family Court decisions if you are really unhappy about them. To do this, you should arrange it with your court-appointed lawyer, or contact the Family Court.
If you’re aged 16 or older, you can ask the Family Court to decide on any important decision that your parents make about them (not just decisions made by the Family Court). At the age of 16 you can also decide who you want to live with.
If you are feeling upset and angry, or don’t know how to deal with your parent’s divorce, you can talk to someone at Kidsline on 0800 543 754 or Youthline on 0800 376 633.
I’m over 16 years old and want to live with my Aunty and Uncle, not my Mum or Dad (they are separated). Can I do this?
Once you’re 16 years old, you can decide which parent you want to live with, or you can leave home. This means that you’re free to live with your Aunty and Uncle if you want and they are agreeable to the arrangement. Your parents will probably want to discuss your decision with you, and why you’ve made it, but they cannot force you to stay with them if you are over 16 (See our other information about legal ages).
If you’re having problems at home, you can talk about it anonymously and in private by calling one of many help lines. You can call Kidsline on 0800 543 754 or Youthline on 0800 376 633. They will be able to talk to you about your situation, and the options you have.