When relationships break down and children are involved, sometimes the Family Court will need to get involved. The Family Court deals with lots of issues, from making orders for children not yet born right through to older people who need care and protection.
In this article, we discuss Parenting Orders for separated couples, as well as the difference between Custody and Guardianship, and what that means to parents.
When you and your ex-partner agree
Everything is a lot easier and less stressful when you are on the same page as your ex-partner. In this case, you won’t need to get the courts involved. However, the Ministry of Justice website has some great resources, including the Making a Parenting Plan workbook, to help you plan for the various situations with respect to your children in future.
This workbook helps you to focus on your children’s needs, arranging time spent with both you and your ex-partner. It helps you to map out and agree on day-to-day care (custody) and contact (access) arrangements. You can download a copy of the workbook here.
When you and your ex-partner don’t agree
When you can’t agree with your ex-partner, the Family Court has a wide-ranging jurisdiction to assist parents who are in conflict. You or your ex-partner can apply to the Family Court to resolve your disagreement(s).
In the eyes of the law, children come first.
It is important for you to understand that if you are considering making an application to the Court that first and foremost, the Court’s focus (enshrined under Sections 4 and 5 of the Care of Children Act) is what is in the best interests, along with the welfare, of the children.
This can be a confronting experience for many parents because your views are not the primary focus of the Court; that is reserved for your children.
Difficulty reaching a consensus
A recent case highlighted a separated couple’s disagreement regarding vaccinating their children. This case presented an exception and a precedent.
In its first instance, the issue of whether a child is to be vaccinated is a guardianship decision. This means that you both need to agree. If you don’t agree, an application can be made to the Court to determine whether that should be made.
In this case, a precedent was set…
The Gillick Competency Test
This test states that if your child (12-years and over) is deemed to have the competency by your doctor they can elect to have the vaccination even if you as their parent and guardian cannot agree.
Applying for a Parenting Order or Order to settle a dispute between Guardians
If you want to apply to the Family Court, you usually need to have attended a Parenting Through Separation course within the last two years and Family Dispute Resolution mediation within the last 12 months.
However, if you need a court decision urgently (without notice), you can make a without notice application. The judge will consider the application straight away. In this scenario, it would be best to discuss your options with us first.
Fees for an Order
For a Parenting Order, you’ll need to pay $220 to the court. You can ask the court to waive (cancel) the fee if paying it would cause you financial hardship. There are also Court Costs.
How long does an Order last?
This depends on the type of Order that the court makes:
A Final Order means that the court has made a decision and the court process has ended. A Final Order usually lasts until a child turns 16, or until one of the people involved asks the court to change (vary) or cancel (discharge) the Order.
The court will make an Interim Order if someone makes an urgent application (without notice). An Interim Order usually lasts until:
a set date, or
- a particular event happens (for example, a parent leaves the country or the court makes a Final Order), or
- the court says the Order stops.
Custody versus Guardianship
Many people confuse custody with guardianship. A Custody Order defines where your child is going to live, who with and at what times.
There are two kinds of orders:
- Day-to-day care Parenting Orders define a shared care arrangement between the parents.
- Primary Care Orders define that the child is with one parent in their primary care and the other parent has more limited contact.
Guardianship can be complicated but for the purposes of this article, think of it this way…If you were present when the child was born or your name is on the child’s Birth Certificate, you are a guardian. (Also known as natural guardian.)
A child can have more than one guardian and the Family Court can make another adult a child’s guardian. This person could be a grandparent, another relative, or a parent’s new partner. (Also known as court-appointed guardian.)
There are also testamentary guardians if a parent dies, although they don’t have the right to the day-to-day care of the child. And the High Court or Family Court can sometimes appoint itself as a child’s legal guardian. (Guardianship of the court.)
Guardianship doesn’t change when you separate
The key thing to remember is even if you separate, you and your ex-partner will continue to consult on all guardianship decisions, especially around your children’s upbringing, well-being and development. That does not change simply because you separate.
In many respects, that cooperation and collaboration become even more important when you separate because it becomes more difficult to reach a consensus.
Guardianship decisions range from simple things such as haircuts but can include more serious issues such as relocation or medical intervention.
Get legal support early
Obviously, there are many considerations and the stakes are high. Because family law is sensitive and complex, we highly recommend speaking to one of our family law specialists at Carlile Dowling. We can answer your questions and recommend the best course of action for your unique circumstances.
We’re here to help you. Please visit our Family Law team here or call Maurice Casey on 06 835-9258 or email maurice@cardow.co.nz.
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