Facts

David and Kate have separated after two years of marriage. They have a five month-old daughter called Charlotte. David and Kate were unable to reach an agreement through the court mediation process. Kate has applied for a parenting order in the Family Court for the day-to-day care of Charlotte because she will be breastfeeding her for another seven months. She would like David to have contact once a week. David has opposed the order and seeks a parenting order for the day-to-day care of Charlotte to be 50/50.

What factors will a judge consider in deciding Charlotte’s day-to-day care arrangements?

The Care of Children Act 2004 outlines that the welfare and best interests of the child in their particular circumstances must be the foremost consideration in any decision concerning the care of children. The Court must take the following principles into account:

• The child must be kept safe and protected from all forms of violence;
• The child’s parents and guardians should have the primary responsibility for the care, development and upbringing of the child;
• There should be ongoing consultation and co-operation between the child’s parents and guardians;
• There should be continuity in the child’s care, development and upbringing;

• The child should continue to have a relationship with both parents, and the child's relationships with his or her family or whānau should be preserved and strengthened; and

• The child’s identity (culture, language, religion) should be preserved and strengthened.

The Court may take into account the conduct of David and Kate but only if it is relevant to Charlotte’s welfare and best interests.

Charlotte’s development and needs

The Court will also take into account the development and needs of Charlotte in determining her day-to-day care arrangements, in particular that:

• Development does not occur at an even rate. For example, the early years of a child’s life is when they experience the most rapid growth.
• During early childhood, the child’s environment is very influential.
• The early development of secure attachments affects the quality of the child’s later inter-personal relationships.
• The consequences of early experience in childhood can be difficult to change.

The Court will endeavour to make Charlotte’s day-to-day care arrangements around her need for love and security. To form secure attachments Charlotte needs stable family relationships, consistency, the security of a familiar place and a routine. Minimising separation from her parents and maximising bonding between Charlotte and her parents is vital. Separation will disrupt her attachments to her parents, which can cause harmful and lifelong psychological, physical, intellectual and social consequences. The Court will not make presumptions about the gender advantages of David and Kate. However, the fact that Charlotte still needs to be breastfed for another seven months will be an important factor.

Conclusion

When deciding a child’s day-to-day care arrangements the Family Court’s paramount consideration is the welfare and best interests of the child in their particular circumstances. In determining what is in the best interests of the child the court must take into account the guiding principles in the Care of Children Act 2004 and the child’s development and needs. Minimising separation between the parents and the child and maximizing secure attachments is vital. This factual scenario outlines the key factors a court will take into consideration when deciding on a child’s day-to-day care arrangement. However, there are no presumptions; every situation is different and will be determined on it’s own facts."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."