Parents Separating and Custody What is the legal process when my parents separate? What custody decisions need 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? Can I go to the Family Court right now? 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 the process you and your parents can go through during your parents’ separation
Initially, your parents might try to resolve the issues between themselves. If that doesn’t work out, they must then attend a parenting through separation course (described below). After that, a mediation run by a family dispute resolution service (described below) might be held to agree on your custody. If none of those steps works, eventually the case will be taken to the Family Court (described below).
This is a long process and can take several years, depending on when your parents choose to settle the case.
Custody arrangements are often called a parent plan. A parent plan should include who has the day-to-day care and/or contact with a child and for how long, how the changeover happens, and 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, and how often reviews should happen. This does not cover everything, so you might find this booklet on parenting plans helpful.
Separation is a difficult time for everyone in the family, and it must be especially hard for you to choose between your parents. While this might be very hard, your first option is to talk to your parents and tell them what you think about your living arrangements. This is because 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 might 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 might 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 the parents are unable to decide on a custody arrangement after separating, the next step is for them to take part in a Parenting Through Separation course. Parenting Through Separation is the first step in the legal process for working out the care of children after separating. The course covers:
The course takes 4 hours and is held either during one session or over two 2-hour sessions. The ex-partners should attend different courses. They can take a support person if the person running the course agrees.
Find a course here.
If everyone involved in the custody discussions has come to an agreement, you can ask the Family Court to sign off on your agreement so that the Court can force everyone involved to follow it. The court will issue a consent order for this purpose. 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 parents disagree on their children’s custody arrangements after separating, and they have attended a Parenting Through Separation course, they will have to go through Family Dispute Resolution (FDR).
FDR is a mediation service where parents, guardian(s), and anyone else involved work together with an independent, professional mediator to come to agreement on who will care for the children and how they will be cared for. The aim is for the parents to agree on a plan that is in the best interests of the children involved.
There are some situations when parents won’t have to go through FDR. These are:
No one can force parents to go through an FDR, but if they won’t, they might have difficulties going to court to settle their disagreement, and the court might be less likely to give them what they want.
FDR involves the parents and anyone else who would like custody of the child(ren). An ‘FDR Provider’ (who is the independent mediator) helps the parents and/or other guardian(s) talk about the issues and tries to help them reach an agreement about the child(ren)’s custody. The goal is to help the parents reach an agreement that is in the best interests of all children involved.
The parents will need to contact a registered FDR provider, who will talk to them and do an assessment to decide whether FDR is appropriate. The people involved can bring support people and family members to a FDR, but lawyers are not allowed. Usually, children are not involved either.
If the parents have a very low income, they might meet the government’s eligibility criteria to get full funding for FDR. This means they won’t have to pay anything.
If they don’t meet the eligibility criteria, the parents will have to pay for FDR themselves. 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 closed court where the most important factor is the child’s welfare and best interests. This means that only people who are involved in a case are 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 a lawyer, so it is 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, call us or a local Community Law Centre to ask about the process of getting a legal aid lawyer.
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 usually have to go through a Parenting through Separation Course and Family Dispute Resolution (FDR) first.
If you are thinking about taking a problem to the Family Court, you should get some advice from a lawyer first. You can call us or your local community law centre about this. You can also find a private family lawyer through the New Zealand Law Society’s ‘Find a family lawyer’ tool.
The Family Court usually only makes a ‘without notice’ order (meaning a temporary decision without the other partner having the chance to give their side of the story) in limited circumstances. These include:
when you or your child(ren) might be in danger if your ex-partner knew about the court case.
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, any arrangement is fine. However, 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 and you’re struggling emotionally, you can call YouthLine or What’s Up. You can also contact us if you have any legal questions when you’re trying to move out.