What is a Parenting Order?
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 are made as a last resort when parents haven't been able to agree on these things themselves.
However, they're sometimes also made as “consent orders” – this is where the parents have reached an agreement and have asked the court to turn the terms of the agreement into a court order.
Note: You usually won’t be able to apply for a parenting order unless you and the other person have already tried to resolve the disagreement through the Family Court’s “Family Dispute Resolution” process. The person applying must also have attended the Family Court’s “Parenting Through Separation” course. (See below, “Compulsory steps before you can apply for a parenting order”.)
What is “Day-to-Day Care” and “Contact”?
A person with “day-to-day care” has responsibility for the child's daily living arrangements, such as where they live, their safety, ensuring they get to school or preschool, and making sure they are properly fed and dressed.
“Contact” refers to how and when the parent or guardian without day-to-day care spends time with the child.
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”.
Note: No matter who has day-to-day care or 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’re both still responsible for making important decisions about a child’s upbringing together – like what school the child will go to.
What issues will a parenting order cover?
A parenting order will set out what the care arrangements for your child will be. It can specify who will provide day-to-day care, including whether this will be just one of you or both of you. If both of you will provide day-to-day care, the order can specify the relevant days and times for this.
If only one of you has day-to-day care, the parenting order can deal with whether the other person will have contact with the child. This can include when and for how long contact will happen, and any arrangements (usually called “conditions”) that are necessary or desirable to facilitate that contact. The order can also specify how the contact will happen – for example, whether it will be direct face-to-face contact, or by phone or email instead.
Can I have a lawyer represent me in a parenting order case?
If you take a dispute about care arrangements to the Family Court, you often won't be allowed to have a lawyer to apply on your behalf and appear with you in court. You'll be allowed a lawyer only in certain types of cases (if it's an urgent case for example) or at certain stages of your case (only the final hearing, if it's not an urgent case). (For more details of these restrictions, and for guidance about who you can go to for legal help, see “About the Family Court / Using lawyers in the Family Court” below.)
Despite those restrictions, however, you can still hire a lawyer to give you advice in the background (helping you with the application documents for example), or a lawyer from the Family Legal Advice Service can provide you with this background help for free if your income is below a certain amount. The Family Court staff will also be available to explain how the court's processes work and what you will need to do. You may be able to access initial free legal advice from your local Community Law Centre.
Can I get Legal Aid for a parenting order case?
For those cases or stages of a case for which you're allowed to have a lawyer represent you and appear with you in court (see above), legal aid is available for this. In other situations, people whose income is below a certain limit can get free background legal help from the government-funded Family Legal Advice Service.
Compulsory steps before you can apply for a parenting order
You usually can't apply for a parenting order unless you've already attempted to resolve the dispute through the Family Dispute Resolution ("FDR") process.
In Family Dispute Resolution an independent mediator helps the parents discuss and try to reach agreement on the issues in dispute.
To prove that Family Dispute Resolution has been tried, you'll need to include a form that's been signed by an approved FDR mediator within the last 12 months, stating:
- that the dispute couldn't be resolved within a reasonable time, or
- that it was inappropriate to start or continue Family Dispute Resolution because one or both of you wasn't able to participate effectively, or because of domestic violence or some other reason, or
- that it was inappropriate to start or continue Family Dispute Resolution because one of you refused to attend or to continue attending.
When Family Dispute Resolution is not compulsory
In some situations you're not required to have attempted Family Dispute Resolution before applying for a parenting order – for example:
- if you're applying for the order in response to the other parent applying for a parenting order, or
- if it's an urgent application (called a “without notice” application, because the other parent isn't told about your application before the judge makes a decision)
- if you're applying for a consent order (this is where both sides want the same thing and ask the judge to make this into a court order)
- if you want the court to enforce an existing parenting order
- if care and protection proceedings have been started for the child under the Children, Young Persons, and Their Families Act 1989, or
- if you provide an affidavit (a sworn statement) with your application, giving evidence that at least one of you is unable to participate effectively in Family Dispute Resolution or that the other person has been violent towards you or your child.
The 'Parenting Through Separation' course is usually compulsory
You usually can't apply for a parenting order unless you (the person applying) have been to one of the Family Court's Parenting Through Separation courses in the last two years.
Your application for a parenting order will need to include a copy of the certificate you were given at the end of the Parenting Through Separation course. If you no longer have your certificate, the Family Court can access the records of who's attended the courses, to confirm that you did attend.
Attending a Parenting Through Separation course isn't a requirement if:
- you're making an urgent application (a “without notice” application), or
- you're not able to participate effectively in one of the courses – because of language barriers for example (you'll need to include some kind of evidence for this in your application).
Applying for a parenting order
Who can apply for a parenting order?
The following people can apply for a parenting order:
- a parent of the child
- a guardian of the child
- a spouse or partner of a parent, if they have had day-to-day care of the child
- any other person who is a member of the child's family, whānau, or other culturally recognised family group, and who is given permission by the court to apply
- any other person who is given permission by the court to apply.
In situations where a parent is dead, has been refused contact with the child by the court, or is making no attempt to have contact with the child, other people are also eligible to apply for a parenting order. These people are:
- the mother or father of the parent who is dead or out of contact with the child
- a brother or sister of that parent
- a brother or sister of the child.
Note:The person who applies for the order is called the “applicant”. The other person is called the “respondent”.
How do I apply for a parenting order?
You must complete a special application pack consisting of the application form and other key documents, and file this with the Family Court. You can download a copy of the application pack from the Family Court website (www.justice.govt.nz/family-justice).
Your application pack includes the following core documents:
- Application Form: Here you give the court the key information it needs, including who you and the other person are, whether you meet the requirements for applying to the Family Court (for example, you must have tried Family Dispute Resolution or be excused from this), and what you want the court to do.
- Affidavit: Your affidavit is your sworn statement containing your detailed evidence to back up your application. (See below for guidance on completing the affidavit.)
- Information Sheet: Here you include basic administrative details that the court needs, like your contact details and occupation, and the same information for the other person.
Note: When you fill out your application, you can type directly into the documents as PDF files on a computer, and you can then print out the completed documents and file them at the court. Alternatively you can print out the blank documents and fill them out by hand, the Family Court does prefer you to complete them as PDFs.
Guidance on completing your affidavit (sworn statement)
The affidavit follows a similar structure to the application form, using mainly the same question headings, but the affidavit provides more detail on all these key questions and issues. It covers the following areas:
- “Are you able to make this application?”: Often there are legal requirements you need to meet before you can apply, and this section deals with those requirements. For example, if you're not someone who's automatically entitled to apply for a parenting order, you have to ask the court for permission to apply, and you'll need to explain here why it's in the children's best interests that you be allowed to apply.
- “Tell the court about the people involved”: Here you give a brief overview of the relationships and background of the adults and children involved in the case.
- “What do you want the court to do to help?”: You explain in full detail what day-to-day care and/or contact arrangements you're applying for, what your reasons are, what impact this will have on the child, and why it's in the child's best interests.
- “Safety questions”: Here you give details of any history of domestic violence or of care and protection issues for the children.
- “Family Court history”: You give details of any other Family Court cases the children have been involved in in the past.
- “Exhibits and extra pages”: Here you attach any other documents, like emails or letters, to the affidavit.
- “Swearing or affirming”: You must swear or affirm that your affidavit is true and correct. This must be done in front of a Registrar or Deputy Registrar at the Family Court, or a Justice of the Peace, or a lawyer (but not your own lawyer).
Your affidavit is a crucial part of your application, and it's important that you make it as strong as possible. The Family Court gives the following guidance for writing your affidavit:
- Stick to the facts.
- Information should be relevant to what you are asking the court to do.
- It's always best to include evidence of what you have seen or heard yourself (first hand information) rather than what someone else has seen or heard (second hand information).
- Try to include specific names, dates and places if you have them.
- Everything that you put in your affidavit must be true and correct to the best of your knowledge and belief. It is a crime to provide false information.
- Extra documents (exhibits) should be attached to the back of the affidavit when you swear or affirm it in front of your authorised witness. If only a small part of an attachment is relevant, for example one paragraph in a thread of several emails, try to highlight this so that the judge knows what's important.
Note:You’ll usually only be able to file one affidavit during your case. After the other person has filed their own affidavit in response to you, you’ll need to get a judge’s permission if you want to file a second affidavit to address what the other person has said.
Who can help me apply for a parenting order?
In some cases you can get a lawyer to apply for you and represent you in court (for example, if you need to make an urgent “without notice” application – see below, “Can I have a lawyer represent me in a parenting order case?”), and legal aid is available for this if you qualify under the income limits.
For non-urgent applications, however, usually a lawyer can't represent you and appear for you in court until the judge has directed that the case will go to a final court hearing. However, this doesn't prevent you having a lawyer to work for you in the background by giving you legal advice and preparing documents for you (including your application). You can hire a lawyer to do this or, if your income is below a certain amount, you can get this kind of background help from a lawyer from the free Family Legal Advice Service (the income limits are the same as for the Family Dispute Resolution service: see above, “Do I have to pay to use Family Dispute Resolution?”).
How much does it cost to apply for a parenting order?
An application for a parenting order costs $220 (unless you qualify for legal aid).
If you're unable to pay the fee you can ask the Family Court not to require you to pay it (called a fee “waiver”). You'll need to show that you're dependent on a benefit or completely dependent on New Zealand superannuation or a veteran's pension, or that you'd suffer “undue financial hardship” if you had to pay the fee.
Note: It doesn’t cost you anything to apply for a protection order from the Family Court under the Family Violence Act. However, if you’re also applying for a parenting order (whether the application is urgent or not), you’ll have to pay the parenting order application fee when you apply.
What if the Family Court has previously made a parenting order?
If a parenting order has already been made for your children within the last two years, you can't take the issue back to the Family Court unless the other person agrees to this or the court gives permission. To get the court's permission you'll need to show that circumstances have changed in some relevant way (a “material change”).