In the course of my work as a Family Law Barrister, I often get asked:  “How do I get full custody of my child?”. To answer this question, I know that I need to ascertain what my client’s understanding of “custody” is, because quite often they mistakenly believe that “full custody” means having the exclusive right to make any decisions for the care of a child and to have the child 24/7.  This is not correct.

To clarify, custody is not what people understand it to be in the New Zealand Family Court system.  There a few things every parent needs to understand so let me break it down for you:

Child Custody

The Care of Children Act came into force on 1 July 2005. Under the previous Act, the Guardianship Act 1968, “day-to-day care” was called “custody”, and “contact” with children was called “access” to children.

With the Care of Children Act a Parenting Order is used to define the role of parents in the care of their children.  There are two limbs to a Parenting Order. First limb being, day to day care and the second limb being contact.  One parent may have day to day care of a child or the children and the other parent will have contact or both parents may share day to day care of the child(ren) equally.

Another question I am often asked is “What is Guardianship?.

Guardianship refers to all duties, powers, rights and responsibilities that a parent of the child(ren) has in relation to the upbringing of the child.  Parents are guardians of  their children regardless of whether the parents are separated/divorced or not.

In some circumstances, the Family Court can appoint additional guardians.  This occurs when the childs natural parents are not available to the child(ren).  In rare and exceptional circumstances, the Family Court can remove guardians.

Some of the clients that I have come across believe or think that the parent that does not have day-to-day care of the child does not have guardianship, or that they should not have guardianship.  However, this is incorrect.  A guardian who does not have day-to-day care of a child is still a guardian and has the right to participate in making important decisions regarding the child, such as relocating to another city or a country, which school the child should attend or even whether the child should be allowed to get a puppy for his/her birthday.  The law says that in exercising guardianship, the guardians must act jointly and consult with each other.

If guardians cannot agree on these decisions, they can make an application to the Family Court for an Order to resolve a dispute between Guardians.

So in general terms you can have “full custody” (day-to-day care), however, you cannot have the exclusive right to make guardianship decisions. The final answer does depend on your own circumstances and that of your children.

Let us assist you.  If you need to resolve a dispute between guardians, lodge an application to remove a guardian or to appoint additional guardians, we are here help.