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?
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 our Guardianship page 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 download a parenting plan workbook from the Family Justice website to help ensure that you cover the key issues in your discussion.
If you can’t agree on a parenting arrangement, you can get help by attending a Parenting Through Separation course or Family Disputes Resolution, or by applying to the Family Court.
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What does the term "day-to-day care" mean and how is it arranged?
The Family Court 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. More about this is in the next question.
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We had an informal arrangement about the care of our children when we split up, but how can I make sure they'll stick to it?
You can apply to the Family Court to enforce the parenting agreement the two of you have, but only if it's already been formalised by the Court (as a consent order). A consent order makes the agreement enforceable by the Family Court. This is worth considering even while both parents currently abide by the agreement, just in case the situation changes.
If your informal agreement is not in writing, you can download a parenting plan workbook from the Ministry of Justice website and use this to help you and your ex-partner record your agreement. The workbook also will help ensure that the key issues are covered, so that you can use it to apply to the Court for a consent order.
To apply for a consent order, you'll need to complete the relevant forms and then file them with the Family Court. You’ll need to complete and file them yourself, but it might be worth getting the forms checked by a legal professional to ensure they’ve been completed correctly (if the forms aren’t completed correctly, your application may be rejected and you may have to re-apply).
You can pay a family lawyer to check your application, or - if you are eligible for funding – a Family Legal Advice Service (FLAS) lawyer can do this for free. More about FLAS is on our Care of children disputes - going to court page.
You probably won't need to appear in Court. More information about applying for a consent order is on the Ministry of Justice website.
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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 (your local CAB can help you find a counsellor).
Alternatively you can to apply for assistance through the Family Justice system. This generally involves:
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My ex-partner is threatening to take our child overseas to live. What can I do?
If you are concerned that your former spouse might remove your child from New Zealand without your consent, you can ask the Family Court, District Court or High Court for an Order Preventing Removal.
In order to apply for an order preventing removal, you need to either have a parenting order in place or be about to apply for a parenting order - you can apply for a parenting order at the same time.
You’ll probably need a family lawyer to help you with this – if you can’t afford a lawyer you may be eligible for legal aid (you may also be able to apply to have some court fees waived). Tell the lawyer how much time you think you have before the child could be taken out of New Zealand, as an emergency hearing may be necessary.
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 notice (i.e. without notifying your ex-partner), and the Court may make an order within a few hours.
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 apply for a border alert - your child's details will be 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.
More information is in a Ministry of Justice guide to Stopping children leaving New Zealand and on the Department of Internal Affairs’ Passports website. You’ll also find information about applying to the Family Court on our Care of children disputes - going to court page.
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I want to take my child overseas on holiday but there is an Order Preventing Removal in place. What can I do?
If an Order Preventing Removal is in place, you would be breaking the law if you try to take the child overseas. Note that the order also applies to the person who applied for it, unless they asked for the order to be varied to exempt them.
If the court order specifies how long it will remain in place, you can just plan to take your child overseas after the end of this period.
Otherwise you can apply to the Family Court to have the order changed (“varied”) or terminated (“discharged”). It will help to get legal advice if you wish to do this.
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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 less than16 years of age, you don't get the final say on whom you will 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. More information is on the Ministry of Justice brochure, Children’s guide to separation.
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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 (with some exceptions). 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 16 years of age or older 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.