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 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.
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 Dispute Resolution process. The person applying must also have attended the Parenting Through Separation course.
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”.
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, for example.
A Parenting Order will set out what the care arrangements for your child will be. It can say 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 set out the 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 for that contact. The order can also set out how the contact will happen – for example, whether it will be direct face-to-face contact, or by phone or email instead.
Lawyers can represent you from the start of a care of children dispute in the Family Court. You are also able to access Legal Aid if you qualify for it (see: “ Qualifying for family/civil Legal Aid ”).
You can have a lawyer represent you in court if you apply under the Care of Children Act for the Family Court to resolve a dispute about care arrangements (a Parenting Order).
You can also 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 background help for free if your income is below a certain amount. Family Legal Advice Service is different from Legal Aid, and even if you don’t qualify for Legal Aid you might qualify for the free Family Legal Advice Service. The income limits for the free Family Legal Advice Service is the same as for the free Family Dispute Resolution service (see: “ Do I have to pay for Family Dispute Resolution? ”).
You can find a Family Legal Advice Service provider on the Ministry of Justice website, here (or go to justice.govt.nz and search “Find a service to help with disputes”). The Family Court staff will be available to explain how the court’s processes work and what you need to do. You can also access initial free legal advice from your local Community Law Centre. To find your nearest Community Law Centre, go to communitylaw.org.nz/our-law-centres.
Note: The staff at the Family Court can give you information about the court’s processes and what forms and documents you need to complete, but they can’t give you legal advice for your particular case – for example, they can’t advise you about exactly what to write in your application.
Yes, if you take a dispute about care arrangements to the Family Court, Legal Aid is available to you if you qualify for it (see: “ Qualifying for family/civil Legal Aid ”).
You usually can’t apply for a Parenting Order unless you’ve already tried to resolve the dispute through the Family Dispute Resolution process.
In Family Dispute Resolution, an independent mediator helps parents discuss and try to reach agreement on the issues in dispute (see: “‘ Family Dispute Resolution’: Mediation through the Family Court ”).
To prove that you have tried Family Dispute Resolution but you could not reach an agreement, you’ll need to include a form that’s been signed by an approved FDR mediator within the last 12 months, stating that:
In some situations, you don’t have to have tried Family Dispute Resolution before applying for a Parenting Order – for example:
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 attended the courses, to confirm that you did attend.
However, you don’t have to attending a Parenting Through Separation course if:
The following people can apply for a Parenting Order:
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:
Note: The person who applies for the order is called the “applicant”. The other person is called the “respondent”.
You have to fill out an application pack that contains the application form and other documents you need, and submit this to the Family Court. You can download a copy of the application pack from the Family Court website. Go to justice.govt.nz/careofchildrenform. You can also download the “Applying for a Court Order user guide” that will explain how to fill out your application.
Your application pack includes the following documents:
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. You can also print out the blank documents and fill them out by hand.
The affidavit is similar 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:
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.
Your affidavit is a very important 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:
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 to not make you to pay it (called a fee “waiver”). You’ll get a letter from the court on how to do this and you’ll generally need to do it within 14 days.
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 you apply to the court for permission. To get the court’s permission you’ll need to show that the situation has changed in some relevant way (a “material change”).
If you agree with the care arrangements that your ex-partner has proposed, you don’t need to respond if you are happy for the arrangements to be turned into a court order.
If you disagree with the care arrangements that the other person has applied for, you can file a response with the Family Court. You should complete the “Notice of Response” form, and an affidavit (a sworn statement). You can download a copy of these documents from the Ministry of Justice website, here (or go to: justice.govt.nz and search “responding to applications for orders”).
In your affidavit you’ll state:
Go to justice.govt.nz/careofchildrenform to download the “Applying for a Court Order user guide” that will explain how to fill out affidavits.
You’ll need to swear or affirm that your affidavit is the truth. 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) (see: “ Guidance from the Family Court about completing your affidavit ” above).
You have to give a copy of your Notice of Response and affidavit to the other person. You have use the “Address for service” that they’ve given in the Information Sheet that was included in their application.
You have 21 days to give your Notice of Response and affidavit to the court and the other person.
Yes. If you need help with completing your Notice of Response and affidavit, you can ask a lawyer for help. Legal Aid is also available to you if you qualify.
You can also get background legal help from a lawyer at the free Family Legal Advice Service, if your income is below a certain amount. The income limits for the free Family Legal Advice Service is the same as for the free Family Dispute Resolution service (see: “ Do I have to pay for Family Dispute Resolution? ”).
Family Legal Advice Service is different from Legal Aid, and even if you don’t qualify for Legal Aid you might qualify for the free Family Legal Advice Service.
The Family Court staff will 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.
Once you’ve submitted your application, usually a Family Court judge will read it and decide what the next steps in the case should be. The judge will do this in their own office (called “chambers”); you won’t be there for this.
One of the first steps in the court process will usually be an “issues conference,” which you and the other person will both attend. Later the judge may also order a “settlement conference,” to see if the case can be resolved without a court hearing. Both of these are explained in more detail later in this section.
Various other meetings (“conferences”) may also be held before the final court hearing. You may not have to attend all of these; the court will let you know if you have to attend.
Each conference will be run by a Family Court judge. The conferences can be held by telephone or video-conference in some cases. After each conference, you’ll be given a written record of the directions or orders made by the judge at the conference.
Te Kopu Legal have published videos on what it is like in the Family Court if you are going without a lawyer. Even though now you are allowed to have a lawyer represent you in the Family Court, these videos can still prepare you for what the Family Court will be like. Go to youtube.com and search “Te Kopu Legal”.
Most Parenting Order cases follow the process described above – called the “standard track” – where you file the application (giving a copy to the other person), the other person files a response, and the case then begins to progress towards a final court hearing, starting with an issues conference.
The process will be different if it’s an urgent case – these follow the “without notice track” (see: “ Urgent cases: The “without notice” track ” below).
There’s also a special shorter process – the “simple track”. If you just apply for a Consent Order (which is where both sides agree on the care arrangements and ask the judge to make this into a Court Order), or if the other parent hasn’t responded to your application (see: “ The ‘simple track’ where both sides agree ” below).
An issues conference will be held early on in your case. At an issues conference, the judge will meet with both of you and identify exactly what the issues are. The judge will then decide how your case should best be dealt with.
The judge will speak to you directly to find out what the key disagreements are.
At the end of the conference, the judge will decide that the case will go either to a settlement conference (see below) or to a final court hearing.
The purpose of a settlement conference is to try to reach an agreement so that a court hearing isn’t necessary.
The judge will run the conference. You can ask to bring a support person with you.
If the conference does resolve the dispute (or some of the disputed issues), the judge can make a Consent Order, which is a court order that turns what you’ve agreed into an order that can be enforced by the court. The consent order must then be obeyed like any other court order.
If you and the other person can’t agree, the judge will order the case to go to a court hearing (or order Family Dispute Resolution).
The Family Court can appoint a lawyer to represent your child if the judge has concerns about the child’s safety or well-being and thinks it is necessary. This lawyer is called “lawyer for the child”.
The role of the lawyer is to act for the child in a way that the lawyer thinks is best for the child’s welfare and best interests. The lawyer will meet with the child to find out their views, and will present those views to the court. The lawyer will also give advice to the child about appealing the Family Court’s decision to a higher court, and must give this advice in a way that’s appropriate to the child’s level of understanding.
If a lawyer is appointed for your child, you and the other parent will usually have to pay two thirds of the lawyer’s fees, in equal shares. But you may not have to pay your share if this would cause serious hardship to you or your children or if you’re getting legal aid.
If yours is an urgent case and you’ve applied “without notice” (that is, without the other person being told about your application), your case will follow the “without notice track”. You can make a “without notice” application if you can show that taking the slower “standard track” could lead to:
Your case will be considered by a judge for the first time without the other person being told and having a chance to respond.
You’re allowed to have a lawyer to represent you and appear with you in court, and Legal Aid is available if you qualify for it.
When the judge considers your “without notice” application they can usually only make an Interim Parenting Order (a temporary order). However, the judge can decide not to make any order without the other person being notified; in that case the judge will say that your case should follow the “standard track”. The process will then be the same as if you’d applied “on notice” at the beginning.
If the judge makes an Interim Parenting Order, the judge will direct that your case go to a hearing for a final decision. The other person will be informed and have a chance to respond to your application. A “directions conference” will be scheduled before a hearing is held, so that the judge can give any instructions to make sure that the hearing is held as early as possible and that it will be able to decide all the issues.
However, after the judge makes the Interim Order they can transfer your case to the slower “standard track” or order you and the other person to go to Family Dispute Resolution.
The judge can classify a complicated “without notice” case as “complex” – this allows them to manage it more closely, including holding one or more case management conferences (see: “ Other steps before the final hearing ” below).
There’s a special simplified process, the “simple track,” if you’ve just applied for a Consent Order (which is where both sides want the same thing and ask the judge to make this into a court order), or if the other parent hasn’t responded to your application or has filed a response after the time limit.
The judge will consider your application in their chambers (offices) without you being present. This will be done usually within two weeks after you apply. The judge will usually make a final order at that point.
Once your case goes to a court hearing (a “defended hearing”), the decision is in the hands of the judge.
At the hearing, the judge will hear evidence (usually from the two parents and any witnesses they bring) and will then decide what the care arrangements for your child will be. At this stage of the case you can have a lawyer represent you. The Family Court is allowed to accept a wide variety of evidence, including evidence that wouldn’t be allowed in other courts.
The most important factor in the judge’s decision must be the child’s wellbeing and best interests (see below).
The judge will take into account what the child wants to happen, if the child has a view on this. In some cases, the judge will have appointed a lawyer to represent the child and convey the child’s views to the court.
You and the other person can still settle the dispute on your own, even after the court hearing has begun. You can do this at any time up until the judge gives a decision at the end of the case.
You can then ask the court to formalise your agreement into a “Consent Order”.
When the Family Court is deciding about care arrangements for a child, the first and most important factor is the wellbeing and best interests of the child.
The court must follow these specific guidelines:
In some cases, a Parenting Order will say that any contact with a particular parent must be supervised.
The child must be given a chance to say what they think and want, for example, who they should live with. They can tell the judge directly, or through a lawyer for the child.
The judge must take these views into account when deciding the case.
To help make a decision, the Family Court can ask for a written report about the child from a specialist, such as a social worker, a medical doctor, or cultural advisor who can report on some aspect of the child’s culture (including their religion).
The parents will usually have to pay two thirds of the cost of these reports, in equal shares. However, you may not have to pay your share if this would cause serious hardship to you or your children or you qualify for legal aid.
There are many options for how a Parenting Order can set out the care arrangements for a child. Sometimes parents will share the day-to-day care of their child equally, sometimes one parent may provide more of the day-to-day care, and in other situations one parent will have day-to-day care for the child and the other will have contact.
The Care of Children Act recognises the importance of both parents being involved in the child’s life and so the Family Court will make arrangements that will allow the child to have an ongoing relationship with both parents, unless this is not in the child’s best interests. The Act recognises a child’s relationship with wider family and whānau should be preserved and strengthened, so a Parenting Order may also set out how these relationships can continue through contact with the child.
A Parenting Order can also deal with things like drop-off and pick-up arrangements and how care will be shared during holiday periods and for special events such as birthdays.
If the judge making a Parenting Order does not believe that the child would be safe with a parent, the judge can order that any contact between the child and that parent must be supervised.
Supervised contact means that contact is overseen by an approved organisation, or by a person approved by the court, such as a relative or family friend. It means that contact will happen in a safe, controlled situation. If the contact is supervised by an approved organisation, this is paid for by the government.
For more information on supervised contact, go to the Ministry of Justice’s website, here (or go to: justice.govt.nz and search “supervised contact”).
If a person doesn’t follow the conditions of a Parenting Order, the Family Court has a number of ways it can enforce the order.
The parties are firstly encouraged to try to resolve the matter themselves, sometimes with the help of lawyers, including lawyer for the child.
If they can’t resolve things, the court can make orders to deal with the breach. The court must consider whether the action it takes will be in the best interests of the child and must only make an order as a last resort. The types of things the court may do include:
It is a criminal offence to intentionally breach (not follow) a Parenting Order without a reasonable excuse. A person who does this can be jailed for up to three months, or fined up to $2,500.
