Do fathers have the same care and contact rights as mothers with regards to their children...

Many parenting enquiries for family lawyers involve fathers seeking contact and equal decision-making power for their children in terms of guardianship matters. 

In New Zealand law, mothers and fathers have equal guardianship rights in terms of having the ability to consult and make decisions with the other parent/guardian as to important issues about their children.  These important issues can include health decisions, places of residence, international travel, religion, schooling and education. 

There is a common misconception that the Court does not look upon these issues in a gender-neutral way, and that somehow the odds are stacked against fathers.

The misconception sometimes arises due to practicalities of:

• childcare,
• paternity issues,
• division of roles within the relationship prior to separation.

For example when parents separate when a child is very young and the child is an infant or new-born, it requires a strict routine of sleeping and feeding, especially if the child is exclusively breastfed.

Contact would also likely need to take place in babies’ awake windows.  For very practical reasons contact between the father and the child may be limited at first. 

It is not until children are a little bit older, and the windows for contact are larger, that care and contact quantity improves, opening up more practical possibilities.

If a baby is bottle-fed there should be no real impediment (if no other safety issues are present) for a father to have reasonable and regular contact with their child. 

Also, in terms of division of roles prior to separation, sometimes a parent’s role in a relationship generates a certain type of contact pattern.  For example, if a parent works a job that has long hours, or is shift work, it can be more difficult for the parent to exercise their contact rights after separation without other support networks in place. 

There is little doubt that the work patterns of parties in relationships are changing, but part of the misconceptions about father’s rights are founded in assumptions of what was more usual in the past.

As the role changes continue we are seeing in other family roles examples that the father can sometimes be a stay-at-home dad who has had a large input into the children’s upbringing.  In this instance, it is not uncommon for the Court to consider the children’s father as the primary caregiver.

Paternity can also sometimes be a factor in looking at a father’s care and contact with the child. If the father was in a relationship with the mother at the time the child was conceived and born, then he would automatically be a guardian of that child unless a biological DNA test proves otherwise. 

If the father and mother were not in a relationship at the time of conception but, for example, were dating, or if paternity is uncertain, then the mother has the option not to include the father on the birth certificate, so he would not automatically be a guardian. If a DNA test proves the paternity of the father, he is entitled to be on the birth certificate. 

In comparison, a mother can only be removed as guardian of the child if there are considerable ongoing, and relatively permanent, safety issues at play for the mother i.e. drug use or an unsafe lifestyle, or the mother is in prison.

The bottom line...

New Zealand law does not have a gender bias in regard to fathers’ contact and guardianship rights. What is appropriate in each situation will depend on the particular circumstances covered above.

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

Please note that Rainey Collins is not contracted to provide Legal Aid, other than in the Treaty of Waitangi area.  We therefore are unable to take on any Civil or Family Legal Aid work. If you require Legal Aid in those areas, you can search the list of Legal Aid lawyers on the Ministry of Justice website.