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The Care of Children Act 2004 aims to help parents come to good decisions about how they’ll work together to look after their children, even if the parents separate.
The Act recognises that it’s better if separated parents decide for themselves about care arrangements for their children. The Act provides for free counselling and mediation to help parents having trouble reaching agreement. A Family Court hearing before a Judge is a last resort if the parents can’t agree.
The Care of Children Act makes the child’s welfare and best interests the first and most important factor when the Courts are deciding issues to do with the child’s care. The Act also recognises that in New Zealand today there are many different types of family arrangements a child might grow up in.
These pages provide information on –
Guardianship
How care arrangements are made when parents separate, including parenting agreements and parenting orders made by the Family Court
Paternity
Child abduction
Child support
Site updated 1 October 2010
Content on this page has been adapted from Wellington Community Law Centre's Legal Reference Manual Copies of the Legal Reference Manual are available for sale. An order form is available here.
Being a guardian means you have all the rights and responsibilities that a parent has in bringing up a child. Usually the parents are joint guardians of the child.
A guardian’s responsibilities include –
Parents as guardians
Other people as guardians
How and when guardianship ends
If guardians can’t agree on decisions about a child, they can ask the Family Court to arrange counselling to try to resolve the dispute, or they can apply to the Court for directions. The most important factor in any decision the Court makes will be the child’s welfare and best interests.
The father and the mother of a child are usually joint guardians. Parents are often referred to as “natural guardians”. However, in some situations the mother may be the sole guardian.
While a child’s mother will automatically be a guardian, the father is a guardian only if –
If a child’s father is not a guardian in one of those situations, he can apply to the Family Court to be appointed a guardian. The Court will do this unless it is against the child’s best interests.
Parents continue to be guardians even if they separate.
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In some situations people other than a child's parents can become a guardian –
Testamentary guardians are appointed by a parent of the child, in a will or deed. The person appointed becomes a guardian automatically when that parent dies. They become a joint guardian with any other guardians.
Unlike other guardians, a testamentary guardian does not have a role in providing day-to-day care for the child. However, they can ask the Family Court to make a parenting order so that they have, or share in, day-to-day care.
The surviving parent or guardian can go to the Family Court to oppose the testamentary guardian being appointed. They can ask the Court to remove that person as guardian or to appoint someone else instead.
The Family Court can appoint someone who isn’t already a natural guardian of a child to be that child’s guardian. The Court can do this when someone has applied to the Court for this, or it can appoint someone on its own initiative when it removes a guardian. A Court-appointed guardian can be appointed as a sole guardian, or jointly with any other guardians.
The child's best interests is the first and most important factor when the Family Court is deciding whether to appoint a guardian.
The Court can appoint the guardian for all purposes and for an indefinite period – for example, if neither parent is able to look after the child.
However, in some cases the Court may decide to appoint the guardian for a particular purpose only – for example, to consent to medical treatment that the child’s parents won’t consent to, like a blood transfusion. Or it may appoint the guardian for a specific period of time – for example, while a parent is overseas, ill or in prison.
In some situations a new partner of a parent can be appointed as a guardian by the Family Court Registrar, without the need to go through a Court hearing before a Judge.
The new partner must have been sharing day-to-day care of the child for at least a year. The couple can be married, in a civil union, or in a de facto relationship.
The child must be consulted about the appointment.
There are also a number of restrictions on when a parent can appoint a new partner as guardian. Some of these relate to the new partner – for example, they must not have ever been involved in any Family Court case about guardianship or care arrangements for a child, or ever had anyone apply for a domestic violence protection order against them, or been convicted of certain offences involving children.
Other restrictions relate to the child and the appointing parent – most of these are to do with whether the child or parent has ever been involved in a Family Court case. Also, the parent cannot have already appointed a partner as a guardian of the child.
Who has to consent to the new partner being appointed?
If both parents are alive, they must both agree to the appointment, whether or not they are both guardians of the child.
If the child has any other guardians, they must also consent to the appointment.
The child must be consulted about the new partner being appointed a guardian.
There’s a special form for making the appointment, and usually both parents and the new partner must sign the form.
The form must be accompanied by –
In some cases the High Court or Family Court will appoint itself to be a child’s guardian. When it does this, the Court usually appoints Child, Youth and Family to act as its agent.
When the Court becomes a guardian, the Court takes priority over the rights of any existing guardians.
Only certain people can apply to the Court asking it to appoint itself guardian of a child. These include the child’s parents and guardians, a partner of a parent if they’ve been sharing day-to-day care of the child, other family members, and even the child. Others can only apply with the Court’s permission.
Guardianship of a child ends when the child –
Guardianship also ends if a guardian is removed by the Court, or if the guardian was appointed for a specific period or purpose and the period ends or the purpose is achieved.
Guardianship has been described as a “dwindling right”. This means that as a child gets older and gains in maturity and understanding, their views become more important and the rights of their guardians to make decisions for them decrease.
The Family Court can take away a parent’s guardianship only if –
Removing the parent as guardian must also be in the child’s best interests.
When the Court is deciding whether to remove a testamentary guardian, a Court-appointed guardian, or a new spouse or partner appointed as an additional guardian, the only question is whether this is in the child’s best interests.
Content on this page has been adapted from Wellington Community Law Centre's Legal Reference Manual. Copies of the Legal Reference Manual are available for sale. An order form is available here.
When the parents of a child separate, one of the most important issues to work out is arrangements for the care of the children – like whether one or both parents will have day-to-day care and, if one parent only has day-to-day care, then when and how the other parent will have contact with the children.
It’s much better if parents come to their own agreement about these things themselves and make a parenting agreement. The Family Court arranges free counselling and mediation to help parents reach agreement.
If the parents can’t agree, then as a last resort either of them can ask the Family Court to resolve the dispute by making a parenting order.
It’s preferable if parents who separate can reach their own agreements about arrangements for the care of their children.
If parents are having difficulties reaching agreement, they can access free counselling and mediation through the Family Court. See Info sheet Family Court.
Parenting agreements usually deal with –
No, a parenting agreement can’t be enforced in the Courts like other agreements and contracts dealing with property.
However, parents and guardians can apply to the Family Court to have a parenting agreement made into a Court order. The agreement can then be enforced like any other Court order.
If the parents are having a dispute about what the agreement means or how it should work, they can ask the Family Court to arrange free counselling to help get the agreement back on track, perhaps with some agreed changes.
Parenting orders are made by the Family Court to decide who will have day-to-day care of a child and who can have contact with a child. They’re made as a last resort when parents haven’t been able to agree on these things themselves or with the help of counselling and mediation arranged by the Family Court.
Having day-to-day care of a child means they live with you and you’re responsible for everyday things like making sure they’re safe, that they get to school or preschool, and that they’re properly fed and dressed.
Contact refers to how and when a child gets to spend time with a parent or other person who doesn’t have day-to-day care of them.
(Day-to-day care used to be called “custody”, and contact used to be called “access”. Parenting orders used to be called “custody orders” and “access orders”.)
Usually parenting orders involve disputes between a child’s parents. But other people in a child’s life can apply for a parenting order too – for example, a guardian or a partner of one of the parents.
Regardless of who has day-to-day care and contact under a parenting order, both parents continue to be guardians of their children (if they were both guardians before they separated). This means they continue to be responsible for making important decisions about the children’s upbringing together.
Find out about –
Applying for a parenting order
Counselling and mediation
How the Family Court decides what to do
Considering the child’s view
The types of arrangements a parenting order can decide on
What happens if someone breaches a parenting order
You must complete a special application form and file it with the Family Court. Most people get a lawyer to help them apply for a parenting order. If you can’t afford a lawyer, you may be able to get legal aid to pay for some or all of your lawyer’s bills.
After you’ve applied, the Court will usually require you and the other person to go to counselling to see if you can reach an agreement.
The following people can apply –
If a parent is dead, or has been refused contact with the child by the Court, or is making no attempt to have contact with the child, then other people are also able to apply. These people are –
When a dispute about care arrangements for a child is taken to the Family Court, the Court will usually refer the parents or other parties to counselling to see if they can come to an agreement. If counselling isn’t successful, the next step is to go to mediation. See Info sheet Family Court.
The Court won’t send the parents to counselling and mediation if it’s not likely to help, or if there’s been violence.
If the parents still can’t agree after going to counselling and mediation, the dispute will go to a Family Court hearing in front of a Judge. At the hearing the Judge will make a parenting order to decide what the care arrangements for the child will be.
When the Family Court is deciding about care arrangements for a child, the first and most important factor is always the child’s best interests.
The Court will also take into account the child’s views. The Court will usually appoint a lawyer to act for the child and to find out the child’s views.
The Family Court must consider the following factors when it’s deciding what’s best for a child –
To help it make a decision, the Judge can ask for a written report about the child from a specialist – like a social worker, a psychologist, a medical doctor, or an expert on the child’s culture.
Cultural reports aren’t limited to dealing with the culture of the child’s particular ethnic group. They can also deal with, for instance, a child’s particular religion.
When a parent or other person has applied for a parenting order, the child must be given a chance to say what they think – for example, about who they should live with. The Court must take the child’s views into account when it decides the case.
If counselling or mediation hasn’t resolved a dispute about a child, the Family Court will usually appoint a lawyer to act for the child and find out what they think – called a “lawyer for the child”.
This lawyer’s job is to represent the child, and no-one else. The lawyer also meets with the child to find out what they think about the dispute and possible solutions to it. The lawyer will make sure the child’s views and all issues relevant to their welfare and best interests are explained to the Court.
The Government pays for the lawyer for the child, unless the Court orders the parents or other parties to the case to share these costs.
A parenting order can set out what the care arrangements for a child will be and how they’ll work. Many different options are possible. The Court recognises the importance of both parents being involved in the child’s life and so will make arrangements that allow the child an ongoing relationship with both parents, unless this isn’t in the child’s best interests. The Court also encourages an ongoing relationship with whānau and other wider family groups.
Parents might share the day-to-day care of their child equally, or one parent might provide more of the day-to-day care, or one parent only might have day-to-day care and the other will have contact with the child.
If only one parent has day-to-day care, the Court will specify what contact with the child the other parent will have, including when and for how long.
A parenting order can also deal with things like drop-off and pick-up arrangements, and what will happen during holidays and around special events like birthdays.
If a parent or other party to the case claims the other has been violent towards them or the child, the Court will want to get information from both sides. If the Court thinks the claim is true, it normally won’t allow the person who has been violent to have day-to-day care of the child, nor to have any unsupervised contact with the child.
Any contact with the child will have to be supervised by an approved organisation, or by someone chosen by the Court, like a relative or friend of the family. The government pays all of the associated costs for supervised contact.
If a person breaches the conditions of a parenting order, the Family Court has a number of ways it can enforce the order.
First, it will encourage the parents or other parties to the case to try to solve the problem themselves, often with the help of counselling. See Info sheet Family Court.
If that doesn’t resolve things, the Court can make a range of orders – see below. The Court must consider whether the action it takes is in the child’s best interests, and can only make an order as a last resort.
The Court can –
It’s a criminal offence to intentionally breach a parenting order without a reasonable excuse. You can be jailed for up to three months, or fined up to $2,500.
Paternity is a word for fatherhood of a child. It can be very important when –
There are a number of ways paternity can be established –
Women applying for the DPB often need to bring paternity proceedings to show they’re taking steps to name the father. If they don’t do this or refuse to name the father, their benefit will be reduced. In some cases though it won’t be refused – for example, if the woman doesn’t know who the father is, or if the father could be violent towards her if she names him.
The law assumes a man is a child’s father –
This presumption doesn’t apply to civil unions and de facto couples. In those cases, paternity has to be established in one of the ways explained below.
If the father wasn’t married to the mother, the birth certificate can be used to establish paternity. The man named on a child’s birth certificate is presumed to be the child’s father. But this can be disputed in Court.
A man can be named as the father of a child either by –
A man can acknowledge paternity of a child in a written document called a Deed of Acknowledgement of Paternity. This is signed by him and the mother, and signed and witnessed by a lawyer.
If there’s a dispute about the paternity of a child, the mother can apply to the Family Court to resolve it by making a paternity order against a man who denies being the child’s father. This may be necessary to establish that she’s entitled to child support or the Domestic Purposes Benefit (DPB).
A man can also ask the Court to declare that he is or is not the father of a child. In some cases other people too can apply to the Family Court for a paternity order.
The High Court can also resolve paternity disputes by declaring that a man is or is not a child’s father.
Often the Court will recommend parentage tests. These involve either blood samples or mouth swab samples from the man, the mother and the child. The man can refuse to take the test, but the Court can take his refusal into account in making its decision.
If you believe your child’s other parent or some other person is about to take the child out of New Zealand in breach of a parenting order, you can apply to the Courts to prevent this. You can also do this if you’ve only applied for a parenting order or are about to apply for one.
If your child has already been wrongfully taken overseas, or been kept overseas, the NZ Government may be able to help you. You’ll need to apply under an international treaty called the Hague Convention to have your child returned to New Zealand.
If you believe your child’s other parent or some other person is about to take the child out of New Zealand in breach of a parenting order, you can apply to the Courts for them to prevent this. You can also do this if you’ve only applied for a parenting order or are about to apply for one. You should see a lawyer as soon as possible.
The Court can issue a warrant for the Police or a social worker to take the child and place them with a suitable person until the Court decides what will happen next.
The Court can also require that any travel tickets and passports be handed over to the Court, including the child’s passport and the passport of the person who was going to remove the child.
If the Court doesn’t issue a warrant, it can order that the child mustn’t be removed from New Zealand for a specified period or until the Court makes another order.
If the Court has made an order preventing a child being taken overseas, you can ask for the child to be entered onto the Customs Service computer system. This is called a “CAPPs” listing. To do this you contact Interpol at Police National Headquarters in Wellington.
The child will then be stopped from getting on the plane when he or she is checked in at an international airport.
If your child has been wrongfully taken from New Zealand or kept overseas, the NZ Government may be able to help you apply to have your child returned to New Zealand under an international treaty called the Hague Convention. The other country must be one that, like New Zealand, has signed this Convention.
You should take action quickly, by contacting the Hague Convention Advisor at the NZ Ministry of Justice or by contacting a lawyer. They will help you apply to have your child returned.
These are the contact details for the Hague Convention Advisor –
The Hague Convention Advisor Ministry of Justice Private Box 180 Wellington
Phone: (04) 918 8800
You can apply under the Hague Convention if –
Contact the Hague Convention Advisor at the Ministry of Justice as soon as possible. If they’re satisfied the Hague Convention applies in your case, they’ll appoint a lawyer to meet with you and complete the necessary application forms. You won’t need to hire your own lawyer, but you can do so if you wish.
You’ll need to start by talking to a lawyer in NZ who specialises in this kind of case. Usually, you’ll also need to hire a lawyer in the overseas country; they will apply to the Courts in that country for the child to be returned. This can be a difficult process. You cannot get legal aid in these cases.
The NZ Ministry of Foreign Affairs may be able to give you a list of lawyers in the overseas country.
Child support is money paid by a parent to support their child when the child is not living with that parent. In the child support scheme, that parent is called a “liable parent”. The following pages explain –
How the scheme works
Voluntary agreements
How parents can challenge child support decisions
Departure orders
How Inland Revenue can enforce payment of child support
The laws covering child support are contained in the Child Support Act 1991. The Child Support scheme is administered by Inland Revenue.
You can apply for child support from a liable parent if you’re the sole or the main caregiver of the child, or if you share day-to-day care equally with another person.
In the child support scheme, you, the caregiving parent, are called an “eligible custodian” of the child.
The child must be -
The child’s caregiver or the liable parent can apply to Inland Revenue Child Support for an assessment of child support. Usually the caregiver applies.
Inland Revenue then assesses the liable parent’s income to find out how much child support must be paid. There’s a set formula for this (a “formula assessment”). IRD can collect child support from the liable parent and pay it to the caregiver, or the two parents can reach a voluntary agreement about how much child support will be paid, and how and when.
If the caregiver isn’t on a benefit they can choose whether or not to apply for child support. Any child support payment is paid directly to the caregiver.
If the caregiver is on a benefit, they must apply for a child support assessment, or else name the other parent so that Work and Income can claim child support from them, to offset the cost of the caregiver’s benefit. If the caregiver refuses to do this, Work and Income can reduce their benefit (although there are some special cases when they can’t reduce it). The child support is paid directly to Work and Income, not to the caregiver. If it’s more than the benefit, the caregiver receives the difference.
The amount of child support is worked out by using a standard formula – a “formula assessment”. The amount depends on –
There is a minimum annual amount of child support that must be paid. This is adjusted each year for inflation.
Child support is paid to the caregiver in monthly amounts. It can also be paid in a lump sum, but this requires a Court order.
If both parents share the care of the child (at least 40% of the time each), they are each assessed with a modified formula, and the parent with the higher liability pays the difference to the other.
On the other hand, it may be that care is “split” – for example, there are two children and one parent has one child all the time and the other parent has the other. In that case they are each assessed with the standard formula. Again, the parent with the higher liability pays the difference to the other.
Yes. If the liable parent is in prison or hospital they may be exempt from paying child support while they’re there. The liable parent must apply for an exemption.
If a caregiving parent is not on a benefit, he or she can choose to make a voluntary agreement with the liable parent, rather than having a formula assessment. The agreement must be registered with Inland Revenue Child Support.
Inland Revenue can still collect and enforce payment, but only if the minimum payment under the agreement is at least $10 a week.
The agreement should state –
If the caregiver is on a benefit, a voluntary agreement between the parents will only be accepted if the amount of child support under the agreement is at least equal to the formula assessment.
The liable parent must pay the amount to Inland Revenue. If it’s more than the benefit, the caregiver will receive the difference.
A caregiver or liable parent who has been assessed for child support can challenge the assessment by making an “objection” to Inland Revenue Child Support. The assessed amount must be paid until a decision is made on the objection.
People can also object to other child support decisions – such as a decision to charge a penalty, or to refuse to accept a voluntary agreement, or to refuse to grant an exemption from paying child support.
You can object to a child support assessment only on one of the following grounds -
You must make your objection to Inland Revenue Child Support within 28 days after the date on the notice telling you about the decision. Inland Revenue doesn’t have to consider your objection if you miss this deadline.
If Inland Revenue turns down your objection, you can appeal its decision to the Family Court. You have two months to file your appeal.
In some cases Inland Revenue or the Family Court can make a “departure order” to allow child support to be assessed differently from the standard formula assessment.
Usually you have to apply to Inland Revenue for the order. But you can apply to the Family Court if Inland Revenue has already made a decision. You can also apply to the Family Court if the Court is already dealing with a case that you’re involved in (for example, a dispute about relationship property or about arrangements for care of the children).
The Child Support Act sets out a number of special cases when Inland Revenue or the Family Court can make a departure order, including –
IRD or the Family Court must also be satisfied that a departure order would be fair to the child and both parents.
If a liable parent doesn’t pay the amount of child support required, there are a number of ways Inland Revenue can enforce payment –
