Parenting Orders in New Zealand: Day-to-Day Care, Contact, and the FDR Requirement

A parenting order is a Family Court order under the Care of Children Act 2004 that sets out a child's day-to-day care and the contact arrangements with the other parent or guardians. Before applying, parents are generally required to attempt Family Dispute Resolution mediation first.

This is general information about New Zealand law, not legal advice. For your own situation, consult a lawyer or your local Community Law centre.

What a parenting order covers

A parenting order is a Family Court order made under the Care of Children Act 2004. It deals with two things: day-to-day care, meaning where and with whom a child mainly lives, and contact, meaning the arrangements for the child to spend time with the other parent, a guardian, or another person the order names. A parenting order can be made in favour of a parent, a guardian, or, in some circumstances, another person with a genuine connection to the child.

A parenting order is different from guardianship, which is about who has the legal right to make major decisions in a child's life, such as schooling, medical treatment, and where they live long term. Guardianship and parenting orders are related but separate parts of the same Act.

The child's welfare and best interests come first

Under the Care of Children Act 2004, the welfare and best interests of the child, in their own particular circumstances, must be the first and paramount consideration in any decision about a parenting order, guardianship, day-to-day care, or contact. The court is not deciding what either parent wants; it is deciding what serves the child. The Act also says the welfare and best interests of a child of any age must not be presumed to require them to be placed in a particular person's care simply because of that person's gender.

Family Dispute Resolution generally comes first

Before a parent or guardian can apply to the Family Court for a parenting order (or a guardianship order), they generally need to show they have already attempted to resolve the disagreement through Family Dispute Resolution, commonly called FDR, a mediation service, and that they have completed a Parenting Through Separation course. This requirement exists to encourage parents to reach their own agreement about their children wherever it is safe and realistic to do so, rather than starting with litigation.

Exceptions to the FDR requirement

FDR is not required in every case. The main exceptions are:

• Family violence. A person does not need to attend FDR, and does not need the usual certificates, if they can provide affidavit evidence that they or the child have experienced family violence involving one of the parties to the application.
• Urgency. Where a child's safety is genuinely at risk, a parent can ask the Family Court for an urgent parenting order, including on a without notice basis, rather than going through FDR first.
• Agreement or existing proceedings. FDR is not required where all parties already agree on the order sought, or where the child is already the subject of proceedings under the Oranga Tamariki Act 1989.
• Inability to participate. A person can also be excused if they can show, by affidavit, that they cannot effectively take part in FDR or the Parenting Through Separation course.

A duty mediator also assesses whether FDR is appropriate at all in a given case, including where there has been family violence or where a party is in prison or overseas.

Applying to the Family Court

Where parents cannot agree, or an exception applies, an application for a parenting order goes to the Family Court. The court considers the evidence, including from the parents, and where relevant a lawyer may be appointed to represent the child's views. A parenting order can later be varied if circumstances genuinely change, and it can be enforced through the Family Court if a parent does not comply with it.

What a parenting order does not decide

A parenting order does not decide financial support for a child. Child support is calculated and administered separately by Inland Revenue under the Child Support Act 1991, using its own formula, and is a different process from applying for a parenting order.

Related pages

Parenting arrangements are often sorted out around the same time as a couple's own separation, including the process for divorce and dissolution if the parents were married or in a civil union. For the wider picture of family law in New Zealand, see the family law guide.