Taking your child overseas - guardianship disputes…

Organising an overseas holiday for your family can be difficult and stressful if your co-parent or guardian does not want your children to leave New Zealand. Guardianship disputes arise when there is conflict as a result of changing a child’s location, including taking a child overseas for a holiday.

In some circumstances reaching an agreement between guardians can be difficult due to the possibility that the children may not return to New Zealand. This could either be from the risks of overseas travel itself, or from fear that the other guardian will not return the children.

Some guardianship disputes can be resolved through Family Dispute Resolution services, which can help to find a solution for you and the other guardian through mediation.

Another option is applying to the Family Court to make an order allowing the children to travel overseas. There are a number of factors that the Court will consider when deciding whether to grant an application for travel.

In these cases, the Court will weigh up the risk of travel compared to the benefits that the trip will have for the children.

For example, in one case the Court determined that a mother was permitted to take the children overseas to her home country, despite there being some risks of travel. This was because they would benefit from learning about their culture and would create long-lasting relationships with their extended family, which outweighed the risks involved.

The Court may consider any evidence of the guardian’s intention to permanently remove the children from the country when deciding whether or not to allow the children to travel.

The Court may also order the parent going overseas to pay a bond, which acts as an incentive for the parent to bring the children back. The idea behind this bond is that if the guardian who took the child overseas fails to return them, the bond will cover the costs of getting the children back to New Zealand. Bonds vary in price depending on factors such as the guardians’ financial situations, the risk of non-return, and the cost of getting the children back to New Zealand.

Another factor which may be considered when allowing travel is disruption to the children’s lives, including to their education and health. The Court may also consider whether the guardian has taken the children overseas before, and whether they returned the children without any difficulties.

If guardians wish, the Court can also order scheduled contact for the guardian in New Zealand with the children while they are travelling, to receive updates. This can provide peace of mind to the non-travelling guardian, and can make the trip easier to deal with.

Planning a holiday can be a stressful task, especially when you face difficulties such as guardianship disputes. If you are unsure of your options, it pays to seek advice from a professional with experience in the area.

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.

Shaun Cousins and Hunter Flanagan-Connors 

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.