Facts

Peter and Sally have separated after seven years of marriage. They have a four year-old son together called John. Peter and Sally were unable to reach an agreement through the court mediation process. Peter has applied for a parenting order in the Family Court for the day-to-day care of John to be 50/50 e.g. one week with Peter and one week with Sally. Sally wants the day-to-day care of John. She would like Peter to have John one weekend a month.

Parenting orders

A parenting order is an order made by the Family Court stating who has day-to-day care of a child and who can have contact with a child. An application for a parenting order can be made by the parents and guardians of the child, a partner of either of the child’s parents or any other person granted leave to apply by the court such as a member of the child’s family. However, parenting orders are seen as a last resort. Applicants must first have attempted to reach an agreement through Parenting Through Separation and Family Dispute Resolution. The only exception is when it is an urgent application, for example, where the child’s safety is in danger. Parenting orders last until the child is 16 years of age. Although the court may decide that the Order continues after that if the case is deemed special.

The welfare and best interests of the child

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 the parents but only if it is relevant to the child’s welfare and best interests. The Court will also not make presumptions about the gender advantages of particular parents. In Peter and Sally’s case the court will consider what is in the welfare and best interests of John. Along with the mandatory principles that the court must take into account, stability and consistency are also important considerations, particularly because John is under five years old. A child’s first five years are crucial in developing secure attachments with their parents. Disruption of these attachments can result in negative effects in later development. As John is four years old a parenting order that gives him security, stability and allows him to form secure attachments with both Peter and Sally will be in his welfare and best interests.

Child views

The child’s views must be taken into account. However, the weight placed on the child’s views will depend on the age and maturity of the child. This is because a child’s preference as to who they wish to live with may not correspond with the child’s welfare and best interests. John will have the chance to express his views and they will be taken into account. However, the court is unlikely to place much weight on John’s views because he is four years old and his maturity levels are therefore very low.

Conclusion

A Court will not necessarily award 50/50 shared care. The Court will decide the day-to-day care arrangements of the child based on what is in the welfare and best interests of the child in their particular circumstances. The principles in the Care of Children Act 2004 and the child’s views will guide the court as to what is in the best interests of the child.

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