A Parenting Order sets out the care and contact arrangement for children up to the age of 16 years.  It is possible for parents or guardians to make their own agreements, or if they cannot agree, to apply for a Parenting Order to be made by the Court. 

This article explains the things that a Court is required to consider in making a Parenting Order.

The Care of Children Act 2004

This law requires that a child’s “welfare and best interests” be the first and paramount consideration when any decisions are made about a child’s day-to-day care, contact or guardianship.  That means the priority in each case is to make decisions that are best for the child, rather than the parents, caregivers or guardians. 

What does “welfare and best interests” mean?

The principles relating to a child’s welfare and best interests are:

  • A child must be protected from all forms of violence from all people, including members of the child’s family, family group, whānau, hapū, and iwi.
  • A child’s care, development, and upbringing should be primarily the responsibility of his or her parents and guardians.
  • A child’s care, development, and upbringing (i.e. guardianship decisions) should be made by ongoing consultation and co-operation between the child’s parents, guardians, and any other person having a role in his or her care under a parenting or Guardianship Order.
  • A child should have continuity in his or her care, development, and upbringing.
  • A child should continue to have a relationship with both of his or her parents, and that a child’s relationship with his or her family group, whānau, hapū, or iwi should be preserved and strengthened.
  • A child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.

Does the child get to have a say about what a Parenting Order or Guardianship Order says?

The Court will take into account the views of the child when making a decision.  The child will usually have their own lawyer appointed to represent their views (“the Lawyer for Child”).  The Lawyer for Child usually meets with the child and with the parents or other people who are part of the Court proceedings and will then report to the Court.  It is rare that a child will be required to attend Court in person. 

The older a child is, the more weight their views will carry when the Court makes the final decision. 

What other considerations are relevant for making a Parenting Order or Guardianship Order?

The law requires that decisions about a child must take into account the child’s sense of time. 

Younger children, for instance, may need shorter more regular periods with the important adults in their lives (for instance 2 days with one parent and then care changes over to the other parent). 

Little babies (for instance who are still being breastfed) may need to have even shorter contact periods, to avoid disruption to their feeding and sleeping routines. 

Older children are usually better able to deal with longer periods away from important adults in their lives (for instance week-about care).

The conduct of the person who is seeking to have care, contact or guardianship of a child is also relevant in any decisions about a child, where that conduct has an impact on the interest and wellbeing of the child.  For instance, a pattern of family violence, neglect, mental health issues or substance abuse by an adult will be taken into account to determine what is best for the child. 

The Court is also allowed to take into account any other relevant considerations. 

Can a father take a child away from the mother?  Can a mother legally keep her child away from the father?

The Court will not assume that any person is better suited to have day-to-day care of a child, simply because of their gender, regardless of the child’s age. 

Can either parent keep their child from the other? 

Can parents and guardians make an agreement rather than apply to the Court for a Parenting Order?

Yes. Read more about The difference between Parenting Agreements and Parenting Orders.

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.