Some separated parents work out childcare arrangements themselves.
Some separated parents work out childcare arrangements themselves.
When mums and dads separate it can often be a stressful time. There will be a multitude of issues to work through.
These are often emotional, financial and property-related. While many parents in this situation may not agree on childcare arrangements, by and large this is the single most important issue to resolve.
There is no obligation to formally record childcare arrangements after a separation. For some families, the parents just work it out themselves.
Limiting legal formality can often be healthy for maintaining working relationships. This isn't always realistic, however, and often parents want the comfort of having care arrangements recorded in writing.
Arrangements can be recorded in writing by the parties themselves, or with the assistance of a lawyer. Section 40 of the Care of Children Act acknowledges such agreements.
While such agreements are an adequate record of what both parents have agreed to, they cannot be enforced.
That is where a Parenting Order come in. Parenting Orders are made in the Family Court under the Care of Children Act.
In a nutshell, they set out care arrangements for children. Terms such as "full custody" and "visitation" are now obsolete under New Zealand Family Law.
A Parenting Order will typically set out who is to provide day-to-day care of the children. In the context of a separation it will also set out how and when the other parent is to have contact. Parenting Orders can be remarkably flexible.
There is no expectation necessarily that one parent has day-to-day care and the other has contact every second weekend (although that is what works for some families). In some circumstances, parents share day-to-day care week about.
Some families have children moving back and forth between mum and dad any number of times during the week. Often arrangements are built around children's educational and sporting commitments.
Typically parents cannot apply to the Family Court for a Parenting Order at the outset. In most cases they are expected to attend a "Parenting Through Separation" course.
This is a seminar that provides parents with useful strategies and insights into dealing with common issues at this time.
Parents are also required to sit down with a Family Dispute Resolution mediator to see if arrangements cannot be agreed on.
Only should this fail are parties usually able to apply to court. While lawyers cannot act at Family Dispute Resolutions, or even court initially, parents can get legal advice. There is also financial support available for this, similar to Legal Aid.
There are also situations where violence and other forms of hardship occur at this time. If so, it is appropriate for one party to apply directly to the court with the assistance of a Family Court Lawyer.
Further, the application goes straight to a judge, typically the same day it is filed. This is for the consideration of interim orders to take immediate effect.
These remain in place while proceedings are served on the other parent and the court process plays out.
Once proceedings reach the Family Court, there are a number of measures available to resolve childcare issues.
A lawyer can be appointed to represent the children. One aspect of their brief is to assist with resolution. This can involve negotiation and roundtable meetings. The court can also hold a settlement conference.
This is very similar to mediation, although chaired by a Family Court judge. Although the judge has no power to make orders without agreement, most Family Court judges are well trained in mediation and parties are often positively influenced by their input.
If the parents are unable to reach agreement on care arrangements, the last resort is, of course, a hearing before a Family Court judge.
At that hearing the witnesses will give evidence (and may be cross-examined) and the parties' lawyers will make legal arguments to the judge.
The judge then imposes a decision that is binding on the parties, rather than the parties controlling the outcome.
The impact of the process of preparing for and attending a court hearing should not be under-estimated.
Typically, court proceedings eat up large amounts of time and energy, and can be the source of heavy financial and emotional burden for all family members concerned.
It will always be worth engaging to the fullest in the alternative processes made available to parents for resolving disputes over children.
