Care of children disputes - first steps to resolution 


When a family (e.g. a separating couple) or other guardians cannot agree on the day-to-day care of their children, they can get help through the Family Justice process. There are several possible stages to this process:

  • Self-resolution – this is where families attempt to resolve matters themselves or by attending a Parenting Through Separation (PTS) course.
  • Assisted resolution – this is a mediation process where families are supported to reach agreements out-of-court, by a Family Dispute Resolution (FDR) provider. It is recommended that both parties have completed PTS before they progress to this step.
  • Going to court – where families go to court because (for example)
    • they couldn’t reach an agreement through assisted resolution or
    • they have experienced domestic violence (for example) or
    • they have reached an agreement and want to make it legally enforceable

If you feel that you or your children are not safe, ask a family lawyer to help you make an urgent application to the Family Court for a Protection Order and a court order to settle your parenting arrangements. If you can’t afford a lawyer, you may be eligible for legal aid.


We can’t agree who our kids should live with. Where do we start?

Your first step would probably be to enrol in a Parenting Through Separation (PTS) programme. This is a free programme to help parents and guardians focus on their children’s needs.

If the issue is still unresolved after you’ve both completed PTS, you can then try mediation through Family Dispute Resolution (FDR). During the FDR process, you’ll work with an independent mediator to discuss the issues and try to come to an agreement about the day-to-day care of your children.

If the FDR process doesn’t resolve the issue (or the FDR mediator has determined that the process is not appropriate in your situation), you can apply to the Family Court for a decision.

In most cases, you won’t be able to apply to the Family Court unless you have already attempted resolution through PTS and FDR.
 
 
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 try mediation through a Family Dispute Resolution (FDR) provider. The FDR provider may recommend that you attend a Parenting Through Separation (PTS) course as well.

If mediation does not help you and the parents to come to an agreement, you may be able to apply to the Family Court for a court order allowing you contact with your grandchildren. However, as grandparents don’t have the automatic right to apply for contact with grandchildren (except for some limited circumstances), you can only do so with the Court’s leave (permission). 
 
It would be a good idea to get legal advice if you are considering going to Court. You may be able to get legal aid (and/or apply to have some court fees waived) if you can’t afford a lawyer. You can find out more about resolving care of children disputes in court on our Care of children disputes - going to court page.

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Can I get free legal advice to help me with our dispute over the care of the children?

If you are eligible for funding you can get help from a Family Legal Advice Service (FLAS) lawyer. A FLAS lawyer is funded to provide you with the following types of assistance:

  • talking to you about your legal responsibilities and the options you have regarding the care of your children
  • explaining to you the implications of any agreements you make
  • telling you what is involved in going to Court with parenting or guardianship matters
  • helping you fill in Court application forms, if you end up going to Court

You can access the FLAS service once per 12 month period.

If you aren’t eligible for funding, you will have to find legal advice elsewhere. To find out whether you are eligible for funding, use this table, call the Family Justice line 0800 2 AGREE (0800 224 733), or contact a FLAS lawyer.

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What happens in the Parenting Through Separation programme and do we have to do it?

Parenting Through Separation (PTS) is run by community providers and is free. It is recommended as a useful tool to help both parties agree on a solution which is best for their children. Anyone can attend who has a dispute about child arrangements.

If you end up applying to the Family Court to resolve your dispute or to formalise your parenting agreement, in most cases you’ll need to show that you’ve completed the PTS course within the last two years (unless your case is exempt e.g. the children are at risk of harm, or one of you isn’t able to participate effectively).

The PTS course is four hours long and is usually presented as two two-hour sessions. Generally the parents will attend the programme separately, but you can normally bring a support person with you (it would be a good idea to run it by your PTS provider first).

The PTS course will cover topics such as how separation affects children; the importance of both parents’ support of the children, how to reduce and manage conflict, and communication skills for people in a separated family.
 
To enrol in a PTS course, simply contact a PTS provider near you (they are listed on the Ministry of Justice website or call the Family Justice line 0800 2 AGREE (0800 224 733).

When you complete the PTS course you’ll receive a certificate of completion – if you end up going to court to resolve your dispute, you’ll need to present this certificate to show the Family Court that you’ve completed this step.
  
 
I’m happy to attend a PTS course but my ex-husband flat-out refuses. What will this mean?

It’s worth going ahead with your own attendance, and perhaps trying to convince your ex-husband to attend a PTS course as well. The aim of PTS is to help both of you focus on what is best for your children, which should help you to agree on a care arrangement.

If your ex-husband refuses to participate in PTS or in mediation through Family Disputes Resolution (FDR), you should still enrol in both of these yourself, in case you end up having to go to the Family Court. This is because in most cases your case won’t be heard in court unless you (as the ‘applicant’) have already attempted both of these.