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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
These pages provide information on –
How care arrangements are made when
parents separate, including parenting agreements and parenting orders made
by the Family Court
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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
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
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
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.
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
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
Removing the parent as guardian must also be in the child’s
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
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
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
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
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
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
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
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
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
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
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
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
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
The Hague Convention Advisor
Ministry of Justice
Private Box 180
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
How parents can
challenge child support decisions
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
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
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
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
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 –