Parenting Orders & Agreements in New Zealand Explained

A parenting order in NZ is a legally binding directive issued by the Family Court, outlining arrangements for the care, upbringing, and contact of children when parents are separated. It details who has day-to-day care, when the other parent or significant persons have contact, and specifies responsibilities regarding a child’s welfare and development. This formal order provides clarity and certainty for families.

Understanding Parenting Orders in New Zealand

For parents in New Zealand navigating separation or divorce, understanding the legal framework surrounding their children’s care is paramount. A parenting order is a central component of this framework, providing a clear, legally enforceable structure for co-parenting. It moves beyond informal discussions to establish formal responsibilities and schedules, ensuring stability for children.

What is a Parenting Order?

In New Zealand, a parenting order is a formal document issued by the Family Court under the Care of Children Act 2004. It outlines how parents (or sometimes other guardians) will share responsibility for the day-to-day care and contact with their children. Unlike a mere agreement, an order carries the full weight of the law, meaning non-compliance can have legal consequences. These orders are designed to resolve disputes and provide certainty for children and their caregivers, focusing always on the child’s welfare and best interests.

Purpose and Scope

The primary purpose of a parenting order is to ensure the ongoing care and protection of children following parental separation. It addresses crucial aspects of a child’s life, including:

Who the child lives with on a day-to-day basis (day-to-day care).
When the child spends time with the other parent or other significant people (contact).
How significant decisions about the child’s upbringing are made (e.g., education, health, cultural upbringing).
Specific conditions or responsibilities related to the child’s welfare.

The scope of a parenting order is broad, encompassing all decisions relevant to a child’s daily life and future. It provides a framework for co-parenting, reducing potential conflict by clearly defining expectations and responsibilities.

Key Principles: Child’s Welfare and Best Interests

Central to all decisions made by the Family Court regarding parenting orders is the principle that the child’s welfare and best interests are the paramount consideration. The Care of Children Act 2004 outlines specific principles the Court must apply:

Child’s safety and well-being: The child’s safety from all forms of harm, including family violence, is prioritised.
Continuing relationship with both parents: Unless it’s not in the child’s best interests, the child should have a continuing relationship with both parents, and both parents should share in the responsibility for their care, development, and upbringing.
Child’s views: The child’s views, if they are of sufficient age and maturity, must be considered.
Cultural identity: The child’s cultural identity and heritage must be recognised and respected.
Stability: Minimising disruption to the child’s life and maintaining stability are important considerations.

Who Can Apply for a Parenting Order?

Typically, a parenting order is sought by parents who cannot agree on arrangements for their children after separation. However, other individuals may also apply if they have a significant relationship with the child and believe it is in the child’s best interests. This can include grandparents, other family members, or even guardians who are not biological parents. The Court assesses each application based on the unique circumstances and, critically, the child’s welfare.

Historical Terms Clarified: From Custody and Access to Care and Contact

New Zealand family law transitioned from the terms ‘custody’ and ‘access’ with the enactment of the Care of Children Act 2004. These older terms are now outdated and replaced by ‘day-to-day care’ and ‘contact’.

Day-to-day care: Replaces ‘custody’ and refers to the parent with whom the child lives for the majority of the time or where the child lives at any given time. This parent has responsibility for the child’s daily needs and routine.
Contact: Replaces ‘access’ and refers to the time a child spends with the parent they do not have day-to-day care with, or with other significant individuals. This can include visits, phone calls, or other forms of communication.

This shift in terminology reflects a move towards more child-focused language, emphasising shared parental responsibility rather than a sense of ‘ownership’ over the child.

The Spectrum of Parenting Agreements

Before resorting to a formal court order, parents in New Zealand have various options for reaching agreements about their children’s care. These range from informal understandings to legally binding documents. The Family Court encourages parents to resolve disputes themselves wherever possible, often through structured negotiation or mediation.

Informal Arrangements: Advantages and Limitations

Many separated parents initially attempt to make informal arrangements, agreeing verbally or through simple written notes on who the children will live with and when they will see the other parent. While these can be flexible and cost-effective, their main limitation is the lack of legal enforceability. If one parent deviates from the agreement, there’s no immediate legal recourse, often leading to renewed conflict and distress for the children. Informal arrangements work best when there is a high degree of trust and cooperation between parents.

Written Parenting Plans: A Structured Approach

A written parenting plan is a more formal and comprehensive agreement developed by parents, often with the assistance of legal advisors or mediators. It details all aspects of a child’s care, similar to what a parenting order would cover, but without initially having the force of a court order. A good parenting plan should include:

Specific dates and times for day-to-day care and contact.
Arrangements for special occasions (holidays, birthdays).
Provisions for communication between parents and with the children.
Decision-making processes for health, education, and extracurricular activities.
Arrangements for travel, passports, and relocation.
Protocols for resolving future disagreements.

Creating a detailed parenting plan fosters clarity, reduces misunderstandings, and demonstrates a commitment to cooperative co-parenting. It serves as a living document that can be reviewed and updated as children grow and circumstances change.

The Role of Family Dispute Resolution (FDR) and Mediation

Family Dispute Resolution (FDR) is a service in New Zealand designed to help separating parents reach agreements about their children without going to court. FDR is mandatory for most parents seeking a parenting order from the Family Court. It involves:

An initial information meeting to understand the process.
Mediation sessions with a qualified, independent mediator who facilitates discussions between parents.
Focus on helping parents communicate effectively and find common ground.

FDR is a highly effective way to resolve disagreements, giving parents control over the outcomes and generally leading to more sustainable arrangements than those imposed by a court. If an agreement is reached, it can be formalised into a parenting plan and potentially converted into a consent order.

If parents reach an agreement through direct negotiation, with lawyers, or through FDR, they can apply to the Family Court for a ‘consent order’. A consent order is essentially a written parenting plan that has been reviewed and approved by the Family Court, giving it the same legal force as a parenting order issued after a defended hearing. This provides the best of both worlds: parents retain control over the content of their agreement, but it becomes legally enforceable, offering security and certainty for all involved. The Court will check that the agreement is genuinely in the child’s best interests before making it an order.

Applying to the Family Court for Parenting Orders

When parents cannot agree on arrangements for their children, or when there are concerns about a child’s safety or welfare, applying to the Family Court for a parenting order becomes necessary. This process is structured to ensure that the child’s best interests remain the central focus, even amidst parental conflict.

When Court Intervention is Necessary

Court intervention is typically sought when:

Parents cannot reach an agreement through FDR or other out-of-court methods.
There are serious concerns about the child’s safety or well-being (e.g., family violence, neglect, abuse).
One parent is consistently breaching an existing informal agreement or parenting plan.
There are complex legal issues that require judicial determination.

It’s important to view the Family Court as a last resort for disputes, as court proceedings can be lengthy, costly, and emotionally taxing for families.

The Application Process: Step-by-Step

The process for applying for a parenting order involves several key stages:

Information Meeting (IM): In most cases, applicants must first attend a free information meeting to learn about options for resolving disputes outside of court, such as FDR.
Application Form: If FDR is unsuccessful or unsuitable, an application (Form G7) is filed with the Family Court. This details the orders sought and the reasons why.
Notice of Proceeding: The other party (respondent) is served with the application and has an opportunity to file a response (Form G8).
Case Management Conference: The Court may schedule a conference to identify issues, consider alternative dispute resolution, and plan the next steps.
Lawyer for Child: In many cases, especially where there is conflict or complex issues, a lawyer may be appointed by the Court to represent the child’s interests.

More detailed information on forms and procedures can be found on the Ministry of Justice website, which provides comprehensive guidance for those engaging with the Family Court system.

Family Dispute Resolution (FDR) as a Prerequisite

As mentioned, FDR is a mandatory step before applying for most parenting orders. This ensures that parents have made a genuine attempt to resolve their differences outside of court. There are exceptions, primarily for urgent applications or where there are serious safety concerns (e.g., family violence), which may allow an exemption from the FDR requirement.

Court Hearings and Procedures

If an agreement cannot be reached, the case proceeds to court hearings. These can range from short-form appearances to full defended hearings with evidence and witness testimony. The Court will hear from both parents, and potentially other relevant parties (e.g., social workers, psychologists), always with the child’s welfare as the central consideration. The process aims to gather all necessary information to make a well-informed decision.

Interim vs. Final Orders

Interim Orders: These are temporary orders made by the Court to cover arrangements while the full application is being heard. They provide immediate structure and stability for the child during the court process, which can sometimes take many months.
Final Orders: These are permanent orders made after all evidence has been presented and heard by the Court. They set out the long-term arrangements for the child’s care and contact. Final orders remain in place until the child turns 16 or until a new order is made to vary or discharge them.

Specific Types of Orders the Court Can Make

Beyond day-to-day care and contact, the Family Court can make various specific orders:

Parenting Order for Day-to-Day Care: Determines who the child lives with. This can be one parent, or shared between parents on an agreed schedule.
Parenting Order for Contact: Defines when and how the child spends time with the parent they do not live with, or with other significant people (e.g., grandparents).
Specific Issue Order: Addresses particular matters like a child’s schooling, medical treatment, religious upbringing, or participation in extracurricular activities.
Restraining Order: In cases of family violence, a restraining order may be made as part of a parenting order to ensure the safety of the child and/or parent.
Relocation Order: If one parent wishes to move a significant distance with the child, an order may be sought to allow or prevent this.

Factors the Court Considers When Making Orders

When making a parenting order, the Family Court meticulously considers a range of factors to ensure the child’s best interests are served. These include:

The need to protect the child from harm.
The child’s own views and wishes (with appropriate consideration given to their age and maturity).
The capacity of each parent to meet the child’s needs.
The child’s relationship with each parent and other significant people.
The child’s cultural identity and needs.
The practical implications of any proposed arrangements, such as maintaining stability in schooling and social life.
Any history of family violence, which significantly impacts how the Court assesses parental capacity and child safety.

Modifying and Enforcing Parenting Orders

A parenting order, while legally binding, is not immutable. Life circumstances change, and an order may need to be varied or, if not followed, enforced. Understanding these processes is crucial for parents.

When and How an Order Can Be Changed

A final parenting order can be changed or ‘varied’ if there has been a ‘material change in circumstances’ since the order was made. This means a significant development or shift in the family’s situation that makes the existing order no longer appropriate or in the child’s best interests. Examples include:

A parent’s relocation.
Changes in a parent’s work schedule or living situation.
A child’s changing needs as they grow older.
New concerns regarding a parent’s capacity to care for the child.
New evidence of family violence.

The process for seeking a variation is similar to applying for an initial order, often requiring engagement with FDR first. The Court will again focus on the child’s welfare when deciding whether to vary an order.

Dealing with Breaches of a Parenting Order

When a parent fails to comply with a parenting order, it constitutes a ‘breach’. Common breaches include:

Failing to return a child at the agreed time.
Denying contact without a valid reason.
Failing to adhere to specific conditions of the order.

If a breach occurs, the aggrieved parent can apply to the Family Court for an ‘enforcement order’. The Court can take various steps to enforce the order, which may include:

Making a ‘directions order’ to help parents comply.
Ordering a parent to attend a parenting programme.
Imposing a bond or requiring reimbursement of expenses incurred due to the breach.
In serious or repeated cases, imposing fines or, in rare circumstances, imprisonment, although this is a measure of last resort.

The Family Court prioritises ensuring that children have consistent contact with both parents as outlined in the order, unless there are overriding safety concerns. It’s advisable to seek legal advice promptly if an order is being breached. Family Justice Services in NZ provide extensive resources on managing parenting disputes and enforcement.

The Importance of Legal Advice and Support

Navigating the complexities of parenting orders and Family Court procedures can be challenging and emotionally taxing. Seeking professional legal advice is highly recommended, even if parents are initially trying to reach an agreement through FDR.

Finding Professional and Community Support

Lawyers: A family lawyer can provide expert guidance, explain your rights and obligations, assist with drafting parenting plans, represent you in court, and help you understand the nuances of the Care of Children Act 2004. They can also advise on the likelihood of success for various applications.
Family Dispute Resolution (FDR) Providers: Accredited FDR providers offer mediation services designed to help parents reach agreements cooperatively.
Family Legal Advice Service: This government-funded service offers free legal advice for people eligible for legal aid for family law matters.
Community Law Centres: These centres provide free legal advice and assistance to those who cannot afford private legal services.
Support Organisations: Various non-governmental organisations offer support for parents experiencing separation, often including counselling and parenting programmes.

Ultimately, the goal of the New Zealand family law system regarding parenting orders is to provide a framework that prioritises the child’s welfare and best interests. Whether through cooperative agreement or court intervention, the focus remains on ensuring children have stable, loving, and supportive environments as their parents navigate separation.