Parents Separating and Custody What is the legal process when my parents separate? What custody decisions needs to be made when my parents separate? My parents are separating, can I choose who I want to live with? What is a Parenting Through Separation course? My ex and I have agreed privately on who should look after the children, how do I make that legal? What is Family Dispute Resolution (FDR)? Do I have to go to Family Dispute Resolution (FDR)? How does FDR work? How much does FDR cost? What does the Family Court do? How does the Family Court work? I’m angry and want to go to the Family Court right now, can I? When can I make an application to the Family Court for custody without telling my ex? If I’m 16 and over, can I choose who I live with if my parents separate?
It is never easy when your parents separate. It is a long and stressful process for you, your siblings, and your parents.
This section explains what process you and your parents may go through during your parents’ separation.
Initially, your parents may try to resolve the issues between themselves. If it doesn’t work out, then must then attend a parenting through separation course. After which, a mediation run by a family dispute resolution service may be held to agree on your custody. If none of the above steps has worked, then eventually the case is taken to the Family Court.
This is a long process and can take a number of years, depending on when your parents choose to settle the case.
Custody arrangement is often called a parent plan. A parent plan should include who would have the day-to-day care or contact with a child and for how long, how the changeover happens, who cares for the child during the holidays.
It may also include big decisions in a child’s life like the child’s name, their education, their religion, medical responsibilities, how often reviews should happen. This is not an exhaustive list, you may find this booklet on parenting plan helpful.
It is a difficult time for everyone in the family, and it must be especially hard for you to choose between your parents. This may be very hard, but the first option is to talk to your parents and tell them what you think.
The law says that you have a legal right to express your views and your views should be taken into account. If you are under 16, your parents or the Court will decide, but the older and more mature you are, the more your views should be accounted for.
If your parents don’t agree, the case may eventually end up at the Family Court, where a judge will decide who will get custody of you and what visitation rights the other parent might get. At Family Court, you may get a lawyer for the child who will find out what your views are and represent your views if your parents’ case is difficult.
If both parents are unable to come to a conclusion themselves on a custody arrangement, the next step is for them to partake in a parenting through separation course. Parenting Through Separation is the first step in the legal process for working out the care for children after separating. The course covers:
The course takes 4 hours and is held either all in 1 session or in 2 sessions of 2 hours. You and your ex-partner should attend different courses. You can take a support person if the person running the course agrees.
Find a course here.
If everyone involved in the custody discussions has already agreed, you can ask the Family Court to sign off on your agreement so that the Court can force everyone involved to follow it later on. You can get a consent order from the court.
You will need to have attended a Parenting Through Separation Course before you can get a consent order.
For more information, please click here.
If your parents disagree on the custody arrangements of you and your siblings after separation, and have attended the Parenting Through Separation course, they will have to go through Family Dispute Resolution (FDR). FDR is a mediation service where your parents or guardian or anyone else involved, work together with an independent professional mediator to try to agree on who and how you and your siblings will be cared for after separation. The aim is for your parents to agree on a plan that is in the best interests of you.
There are some exceptions when your parents won’t have to go through FDR. These are:
No one can force you to go through an FDR, but if you won’t, then you might have difficulties going to court to settle your disagreement, and the Court might be less sympathetic to your case.
FDR involves your parents and anyone else who would like custody of you. An ‘FDR Provider’ who is the independent mediator helps your parents and/or other guardians talk about the issues that are causing the problem and try to help them reach an agreement between themselves about your custody. The goal is to help your parents reach an agreement that is in the best interests of all children involved.
Your parents will need to contact a registered FDR provider, who will talk to them and do an assessment to decide whether FDR is appropriate.
They can bring support people and family members along to FDR, but lawyers are not allowed. Usually, children aren’t involved either.
If your parents have a very low income, they might meet the government’s eligibility criteria to get full funding for FDR. This means you won’t have to pay anything.
If they don’t meet the eligibility criteria, they will have to pay for FDR yourselves. If they use a provider who is government funded, it will cost up to $448.50 per parent. If they use a private provider, they can charge however much they like. The cost will be split equally between all of the parties.
The Family Court is a special court that only deals with family matters that include:
The Family Court is part of the District Court. There is a local court in most areas. You can find more information about the Family Court on the Ministry of Justice website, or by calling the free Ministry of Justice family justice information line on 0800 2AGREE.
The Family Court is a closed court involving the care of children where the most important factor is the child’s welfare and best interests. This means that people who aren’t involved in the case aren’t allowed to come in and watch what is going on.
You don’t always have to have a lawyer to go to the Family Court. However it can be very difficult and stressful without one, so it’s a good idea to get one. You might be able to get legal aid to help you pay for a family lawyer. If you are uncertain, give YouthLaw or your Community Law Centre a call about the process to get a legal aid lawyer.
If you have a family problem that you are not able to solve yourself, you might want to go to the Family Court and get a judge to make an order.
If the problem involves making decisions about your children, you generally have to go through a Parenting through Separation Course and Family Dispute Resolution (FDR) first.
If you’re thinking about taking a problem to the Family Court, you should get some advice from a lawyer first. You can call YouthLaw or your local community law centre. You can also find a private family lawyer through the New Zealand Law Society ‘Find a family lawyer’ tool.
The Court generally only makes a “without notice application” and gives you a temporary decision without the other person getting a chance to give their side of the story where they believe it is urgent or you or your child might be in danger if the other parent is notified. Examples of situations you might need a without notice application are if you think there’s a serious danger to your child if they stay in the day-to-day care of someone else, or if you think another guardian is planning to take the child out of the country without your permission.
In most circumstances, you can choose who you stay with as long as there is no ongoing parenting order. Most parenting orders end when you turn 16. You can also decide to leave home at 16.
As long as you are living in a safe place, and you or someone else can financially support you, then any arrangement is fine. It is best to let your parents or guardians know where you’re going, so they don’t think you’re missing.
If there are problems at home emotionally, you can call YouthLine or What’s Up.
If you have any legal questions when you’re trying to move out, call YouthLaw.