When a relationship ends, the question of how to care for the children is almost always the most important and emotional issue that parents face. In New Zealand, the Care of Children Act 2004 (COCA) governs parenting arrangements after separation. Understanding how the law works can help you navigate this difficult time with clarity and confidence.

The Welfare and Best Interests of the Child

The overarching principle in all matters involving children under COCA is that the welfare and best interests of the child are the first and paramount consideration. This means that the court's primary focus is on the child - not on the rights or wishes of either parent.

Section 5 of the Act sets out a number of principles that the court considers, including:

  • The child should have continuing relationships with both parents
  • The child's safety must be protected
  • The child's views should be taken into account, having regard to their age and maturity
  • Arrangements should be practical and workable
  • There should be minimum disruption to the child's existing arrangements

Guardianship vs. Day-to-Day Care vs. Contact

It is important to understand the distinction between these three concepts:

  • Guardianship - A guardian has the right to be involved in major decisions about a child's life, including education, health, religion, and name changes. Both parents are usually guardians, regardless of whether they live with the child.
  • Day-to-day care - This refers to the parent (or person) with whom the child primarily lives. It is the practical, everyday care of the child.
  • Contact - This is the time that a child spends with the parent they do not primarily live with. Contact can be regular (such as every other weekend and one midweek evening) or as agreed between the parties.

Reaching Agreement Without Court

The law strongly encourages parents to resolve parenting arrangements by agreement wherever possible. Options include:

  • Direct negotiation - Parents discuss and agree on arrangements between themselves, often with the support of their lawyers.
  • Mediation - A neutral mediator helps the parties reach agreement. Mediation is confidential and often more cost-effective than court proceedings.
  • Family Dispute Resolution (FDR) - Before applying to the Family Court for a parenting order, most applicants must first attend FDR. This is a government-funded mediation process specifically designed for family disputes. There are limited exceptions - for example, where there are allegations of family violence.

Agreements can be recorded in a parenting agreement, which is a written document signed by both parties. While parenting agreements are not directly enforceable through the court, they provide a clear record of what was agreed.

Applying for a Parenting Order

If parents cannot agree, either parent can apply to the Family Court for a parenting order. The court can make orders about:

  • Who the child will live with (day-to-day care)
  • When and how the child will have contact with the other parent
  • Specific conditions - such as handover arrangements, communication protocols, and travel restrictions

The court process typically involves filing an application, attending a Family Dispute Resolution conference (if not already completed), and potentially a judge-led mediation or defended hearing. A lawyer for the child may also be appointed to represent the child's views and interests.

Relocation

If a parent with day-to-day care wishes to relocate with the child - particularly overseas - they must obtain the consent of the other guardian or apply to the court for permission. Relocation cases are among the most difficult in family law, as they require the court to balance the relocating parent's right to move with the child's relationship with the other parent.

Enforcement

If a parent does not comply with a parenting order, the other parent can apply to the court for enforcement. The court has a range of options, including issuing a warrant to recover the child, imposing conditions, or varying the order.

How Indus Legal Can Help

Our family law team understands how emotionally charged parenting disputes can be. We take a pragmatic, child-focused approach - always aiming to resolve matters by agreement where possible, but prepared to advocate firmly in court when necessary. Whether you need help negotiating a parenting agreement, attending FDR, or applying for a parenting order, we are here to guide you through the process.

Contact us on 09 869 4888 or email office@induslegal.co.nz.