How to apply for a parenting order to get contact (access) with your children

Introduction

When parents separate there are a number of possible ways in which they can divide responsibility for the care of their children. They might decide to share day-to-day care. Or they might decide that one parent only will provide day-to-day care, with the other having regular contact with the children (see How to apply for a parenting order for day-to-day care (custody) of a child).

If only one parent has day-to-day care and the other parent feels he or she does not have adequate contact with the child, the other parent can apply to the Family Court for a parenting order that provides for him or her to have contact with the child.

Care arrangements for children are governed by the CARE OF CHILDREN ACT 2004, which came into force on 1 July 2005. Under the previous Act, the GUARDIANSHIP ACT 1968, "day-to-day care" was called "custody", and "contact" with children was called "access" to children.

How do I apply for a parenting order?

You will need a lawyer to help you apply for a parenting order. It would be unusual for a person to apply and go through the court process without a lawyer.

Application forms for parenting orders are available on the Family Court website at www.justice.govt.nz/family, under Legislation & legal resources / Forms.

How will the court decide the question of contact with the child?

The first and most important factor is always what is the child’s best interests. The court normally sees it as being in children’s best interests for them to have contact with both parents. However, there are many considerations that the court will take into account, including:

• what the child wants, depending on the child’s age and level of maturity
• whether the person applying for contact has been violent or abusive towards the other parent or the child (if so, contact is likely to be limited and supervised)
• whether either parent has a new partner

What kinds of issues can the parenting order cover?

If the parenting order provides for you to have contact with your child, it can specify –

• how the contact will happen – for example, whether it will be face-to-face, or in some indirect way such as by phone or email
• how often and how long the contact will be for
• any particular arrangements that need to be included, such as where your child will be dropped off or picked up

The order can also include specific contact arrangements for holidays, birthdays and other special days.

What if there’s an existing parenting order that deals with contact?

You may apply for the court to change ("vary") an existing parenting order if circumstances change – for example, if your child and the parent who has day-to-day care move away.

Who can apply for a parenting order to be given contact with a child?

The following people can apply:

• a parent or guardian of the child
• a partner of one of the parents (whether they are married, in a civil union or in a de facto relationship) if they’ve been sharing day-to-day care of the child
• any member of the child’s family, whānau or other family group who gets the court’s permission to apply
• anyone else who gets the court’s permission to apply

Certain other people can apply if one of the parents –

• has died
• is stopped by the Family Court from having contact with the child, or
• is not trying to have any contact with the child

The other people who can apply in those cases are as follows:

• the mother or father of the parent who is dead or who is not having contact with the child
• a brother or sister of that parent
• a brother or sister of the child

Can I challenge the parenting order if I’m denied contact with my child?

Yes. You or anyone else who was a party to the case can appeal the order to the High Court. The child can also appeal.

What if the other parent prevents me having contact under the parenting order?

The other parent commits an offence if, without a reasonable excuse, he or she intentionally hinders or prevents you having contact with your child as provided for under a parenting order. A person convicted of this can be fined up to $2,500 or jailed for up to three months.

However, the Family Court encourages people to work out disputes themselves. If you believe the other parent has breached the parenting order, you can ask the court to arrange free and confidential counselling so that you can try to sort the matter out. If you apply to the court for it to enforce the parenting order, it will usually refer you to counselling anyway as a first step.

If counselling doesn’t resolve the problem, the court can do various things to address it –

• it can "admonish" the other parent (tell them off)
• it can change or cancel the order – for example, it could reduce the amount of time during which the other parent has day-to-day care of the child
• the court can order the other parent to pay money to the court as a bond, which they could lose if they continue to disobey the order
• if you had to spend money because of the breach (like paying for travel tickets), the court can order the other parent to compensate you by paying you an amount of money
• the court can enforce the contact provided for under the order by directing the Police or a social worker to pick up the children and deliver them to you

Supervised contact in cases of violence

If a parent has applied for a parenting order and one of them claims that the other has been violent towards them or the child, the Family Court will hear from both sides and decide whether or not the claim is true.

If it decides the claim is true, the Court will normally require any contact between the child and the person who has been violent to be supervised by an organisation that provides supervised contact services, or by a particular person that the court chooses – for example, a relative or a family friend. The court may also require contact to be supervised while a claim of violence is waiting to be heard by the court.

Cautionary notes

• You should attempt to resolve the question of contact amicably through negotiation, without going through the court process. This will be best for everyone – most importantly, for the children. If you do find yourself involved in court proceedings, you would be well advised not to pursue the dispute as if it were all-out war. Not only will this tend to be destructive for the children, the Family Court is unlikely to look favourably on a parent who is angry and hostile. The court will always do what is in the welfare and best interests of the children.
• If you and the other parent make a separation agreement when you break up, one option is for arrangements for day-to-day care and contact to be included in that agreement.