Can a Parent Withhold a Child’s Passport in New Zealand?
When parents separate or divorce in New Zealand, disputes over children’s passports can arise. One parent may wish to travel overseas with the child, while the other parent objects and refuses to release the child’s passport. This raises the question: Can a parent legally withhold a child’s passport in New Zealand? The answer depends on several factors under New Zealand family law, as governed by the Care of Children Act 2004 and relevant case law.
Parental Responsibility and Guardianship
In New Zealand, both parents are generally considered guardians of their child and have joint parental responsibility, even if they are separated or divorced. Section 16 of the Care of Children Act 2004 states:
The duties, powers, rights, and responsibilities of a guardian of a child include (without limitation) the guardian’s—
(a) having the role of providing day-to-day care for the child; and
(b) contributing to the child’s intellectual, emotional, physical, social, cultural, and other personal development; and
(c) determining for or with the child, or helping the child to determine, questions about important matters affecting the child.
This means that both parents have a say in major decisions affecting the child, including overseas travel and passport matters. If one parent wants to take the child out of the country, they generally need the consent of the other parent.
Withholding a Child’s Passport
If one parent has the child’s passport in their possession, they may choose to withhold it to prevent the other parent from traveling with the child. This often happens when there are concerns about the child’s safety, the other parent’s parenting ability, or the risk of the child not being returned to New Zealand.
However, simply withholding the passport does not give a parent the automatic legal right to prevent the child from traveling. If the other parent applies to the Family Court for an order allowing them to take the child overseas, the court will consider various factors to determine if the travel is in the child’s best interests.
Applying to the Family Court
If parents cannot agree on overseas travel arrangements for their child, either parent can apply to the Family Court for a parenting order under the Care of Children Act 2004. The court will assess the merits of the proposed travel, the child’s welfare and best interests, and any risks involved.
Factors the court may consider include the reason for the travel, the length of the trip, the child’s relationship with each parent, any history of family violence or abduction concerns, and the likelihood of the child being returned to New Zealand. The court may also take into account the child’s views, depending on their age and maturity.
If the court grants an order allowing the child to travel, it can also impose conditions such as requiring the traveling parent to provide an itinerary, contact details, and proof of return travel arrangements. The court may order the surrender of the child’s passport to enable the approved travel to occur.
Preventing Overseas Travel
In some cases, a parent may have serious concerns about the other parent taking the child overseas, such as in situations involving family violence, child abuse, or abduction risk. In these circumstances, the concerned parent can apply to the Family Court for an order preventing the removal of the child from New Zealand.
If the court believes there is a real risk of the child not being returned, it can make an order under Section 77 of the Care of Children Act 2004 to prevent the child from being taken out of the country. This may include ordering the surrender of the child’s passport to the court or a third party.
Conclusion
In conclusion, while a parent can physically withhold their child’s passport in New Zealand, this does not necessarily prevent the other parent from traveling with the child overseas if they obtain a court order. The Family Court has the power to make parenting orders allowing or preventing overseas travel, based on the best interests of the child.
If you are dealing with a dispute over your child’s passport or overseas travel, it is crucial to seek legal advice from an experienced family lawyer. Naomi Cramer is a top New Zealand family lawyer who can provide expert guidance on your parental rights and responsibilities under the Care of Children Act 2004. Watch her videos to learn more, and contact Naomi Cramer for personalized legal assistance with your family law matter.
No solicitor-client relationship is created by this article. The author and owner shall not be liable for your reliance on the information contained in this article. Readers should obtain their own independent legal advice.
