0Custody arrangements

Separated parents are encouraged to come to their own arrangements as to the day-to-day care (custody) of their children, which may involve sharing care equally (joint custody) or splitting it in a way which suits all concerned (shared parenting). It is considered much better for everyone involved to have the parties agree on an arrangement themselves, rather than having it decided for them. A parent who does not have day-to-day care may have contact with the child, formally known as ‘access’. Some common joint custody arrangements are:

  • Children spend week-about with each parent
  • Children spend three days per week with one parent and four with the other
  • Five days with each parent, followed by two with each parent
  • Two days with one parent, five with the other, five days with the first parent, then two with the other.

A joint custody arrangement is not always in your child’s best interests and there are a number of options available. A shared care arrangement need not consist of a substantially equal time-split, it may be that one parent has the children on the weekends or every second weekend.

Key Factors

  • Time – Do you have enough time to spend with your children? For example if you cannot be home until 6pm during the week, you might be better to have them on the weekend.
  • Location – How far apart do you and your ex partner live? Consider that your children will probably need to remain at the same school and also think about the logistics of moving them between houses.
  • Stability – Can you provide your children with stability? This is relevant in an emotional and physical sense. You need to be in a frame of mind in which you can put the needs of your child first. You also need to have adequate facilities in terms of a stable home, bedrooms, furniture, toys and books.
  • Relationship with your ex partner – It is important that the children’s upbringing remains consistent to avoid children having to abide by two sets of rules. In order to achieve this, it is best if the parties can communicate effectively regarding their children. Try to separate out your relationship as former partners and your relationship as parents.

Try to maintain open lines of communication when making this decision and put the needs and best interests of your child first, remembering that this involves a continuing relationship with both parents, and a stable family environment. If you are a father with a busy job, you do not need to be a ‘weekend dad’. It is certainly possible for you to have a significant share of the care of your children, and we can help you in obtaining a custody arrangement which you are happy with.

Children under 5 years of age vs over 5 years of age

Parents should consider the difference in appropriate custody arrangements between children of under and over five years of age. Children under five are likely to display signs of distress where their routines are disrupted to any great extent, so as much certainty and consistency as possible is very important. This is particularly relevant for toddlers and infants whose sleeping and feeding patterns are very important. Children over five years of age and particularly more than eight years are able to cope better with changing environments and are old enough to begin communicating their own views. There is more scope then to share a greater proportion of the care with your ex partner without too much disruption to the children’s lives and also to involve the children in decisions made. Preserving the welfare and best interests of your child should always be your first priority.

Guardianship

Generally the mother and father are joint guardians of the child; parents are often referred to as ‘natural guardians’. However, although the mother is an automatic guardian, the father is only a guardian if:

  • He was married to or in a civil union with the child’s mother at any time from conception to birth; or
  • The child was conceived before 1 July 2005 and he was in a de facto relationship with the child’s mother at birth; or
  • The child was conceived on or after 1 July 2005, and they were in a de facto relationship at the time the child was born; or
  • Both their names are on the child’s birth certificate; or
  • The Family Court has appointed or declared the father a guardian.

Applying to the court for appointment as a guardian

The father who is not married to or in a de facto relationship with the mother can apply to be appointed a guardian by the Family Court. The Court will generally do this unless it is against the child’s best interests. A father may wish to be appointed as a guardian instead of the mother. To do this, the father needs to show the Court that the mother is either unwilling or for some grave reason, unfit to carry out her guardianship responsibilities. In addition, the father must show the Court that because of this, the child’s welfare and best interests would be served by an order in his favour. The court requires very strong evidence from the father when considering this kind of application and an order will not be made lightly.

Applying to the court for recognition as a guardian

A father who is already a guardian of a child can apply to the Family Court to make a declaration of guardianshipand recognise their guardianship status officially. It might be wise to do this in a situation where a mother and father have separated, and the mother has indicated she doesn’t want the father involved in the child’s life. Generally, if a father wishes to be involved in his child’s life, his relationship with the mother was more than fleeting, and he has not had guardianship rights removed, the Court will make the declaration. However as always, the paramount consideration will be the welfare and best interests of the child.

Road Blocks: tools for getting more contact

  1. Keep a diary – record conversations you have regarding your children, decisions you and your ex come to, questions you have and any advice you have received. This will be of great help in remembering details if the care of your children comes into dispute later on.
  2. Stay calm – when emotions run high, we can often make rash decisions which can have far-reaching consequences. Try to keep a clear head, it is in the best interests of you and your family to do so.
  3. Understand and address the concerns of the other party – If your ex partner expresses concerns about your behaviour or lifestyle, take the time to think about those and address them. Flying off the handle will not help your situation so remain calm in the face of criticism and do your best to be understanding and show you are making changes.
  4. Work towards a better relationship – if relations with your children’s mother are strained, do your best to work toward improving those. Try to separate your relationship as ex partners and your relationship as parents. Your children will benefit greatly if this can be achieved.
  5. Meet your obligations – do what you can to ensure you maintain a consistent routine, particularly with the children, and try to pay all bills on time.
  6. Maintain normality – as well as keeping up a stable routine, you should do your best to keep a sense of normality in the time your children spend with you. This means doing normal everyday activities and not continually treating them to gifts or trips to their favourite places.
  7. Get Involved – Participate as much as you can in your children’s lives. This might include getting more involved with their school and/or any extra-curricular activities such as sport or music.
  8. Make the most of contact – Even if you are not satisfied with the amount of contact you get, make the most of the time you do have with your children. Avoid any displays of resentment toward their mother and focus on enjoying your time together.
  9. Look after yourself – It is in your children’s best interests for you to be healthy and happy. Eat well, communicate well and maintain a positive attitude.

Agencies and Support

New Zealand Fathers Groups:

Government


“The information posted on this website is prepared for a general audience, without investigation into the facts of any particular case. This information is no substitute for legal advice and does not create a lawyer-client relationship; you are advised to consult with a lawyer on any legal issue.”