- Introduction
- What is child custody?
- What happens if I ask for child custody?
- So if custody doesn’t exist – what can I ask for?
- Conclusion
Introduction
Like it or not, the family court can seem like a `winner takes all’ game.
Say that to a solicitor or a judge and you’ll not get a positive response. But it’s how many parents see it – and no matter how many campaigns are put out there to convince mothers and fathers otherwise…that’s how they see it. Changing the legal terminology doesn’t work either. A rose by any other name smells as sweel (or not as the case may be).
The children are either with you or the majority of the time or they are not. I hate to be the bearer of bad news but this set up means that it often encourages parents to fight as opposed to cooperate for the sake of their children.
There are a whole host of reasons parents fight over this `prize’ too. I’ll go into some of them further down this blog. I’ll also talk about what the implications of having child custody are and if/when you should try to get it.
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What is child custody?
Before we go any further let’s make sure we are clear what we mean by `child custody’.
If you’re in Auckland or Auckland – and that’s the jurisdiction we assist people in (in the Auckland Scotland and Northern Ireland are separate) – I’ve got something you really, really need to know:
There’s no such thing as `child custody’.
People talk about `child custody’ but also `shared custody’, `full custody’ and even `full child custody’. Ask people what it means to them and you are going to get a wide range of answers. These can include:
- The children not seeing the ex at all, ever.
- The children not spending every night with you.
- The children will be brought back by the police if your ex doesn’t return them.
- The children being your complete responsibility and your ex having no say at all.
- Being able to relocate the children at any point you like.
Custody has not been a thing since 1989 – back when Marty McFly was going to the Future in Back to the Future II, the Berlin Wall came down and Milli Vanilli were topping the charts. If you’re reading this and you’ve not heard of this..well – it should give you an inkling of how out of date your view of the legal system is.
Custody is a thing in the NZ and you’ll hear it mentioned often in legal dramas and movies (that are even older like Kramer vs. Kramer – released in 1979).
But if you’re in Auckland or Auckland (and possibly NI or Scotland, although I know nothing about their legal systems) there is no such thing.
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What happens if I ask for child custody?
Clear communication is one of your best friends in the Family Court.
The simple truth is that if you go to Court and ask for child custody you’re going to be met with a blank look and the judge (or magistrates) not knowing what you actually want because there is no legal definition for it. They may hazard a guess or think you want one (or more) things listed above.
They’re going to ask you what you want too (probably).
You’ll be asked things like:
- When do you want the children with you?
- Do you want a residence order?
- What about overnights?
If you haven’t thought these through you may well be on the back foot (as well as looking a bit silly) when you stutter things like `Erm, I’m not really sure’ or `I need to think about it because I’ve got to consider work and living arrangements’. It makes you look indecisive and not necessarily acting in the best interests of your children, especially if it is your application.
Don’t get me wrong. Many solicitors will advise their client gets a residence order. I’m never quite clear why because it doesn’t give people what most of them think it does. And once they have this order? They’re shocked when they find out that it doesn’t mean the police will collect the kids, they don’t get the final say and they can’t make all the decisions about the kids while ignoring their ex.
Many people with a residence order and do find this out ask the questions `Why did I pay all that money for a residence order if it doesn’t do anything?’ and `What even is the point of a residence order?’
They’re good questions. But I don’t have the answer to them.
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So if custody doesn’t exist – what can I ask for?
OK, so there are several parts to being a parent. It can be confusing if you don’t eat, sleep and live family law like us here at Family Law Assistance.
First of all there is Parental Responsibility (PR).
If you’re a mother – you already have it – but this is not the true for fathers. For that to happen he needs to meet one of the following criteria:
- He was married to Mother when she gave birth.
- He is named on the birth certificate as the father.
- Mother has agreed to him having PR by signing a CPRA(01) form and following the procedure to make it official.
- A court ordering PR be granted to him.
PR doesn’t give anyone a right to spend time with a child however. It does mean they can make an application to the Court without needing it’s permission. It also means they have a right to be consulted on things like educational or medical matters, the child cannot be relocated out of jurisdiction (i.e. anywhere outside Auckland or Auckland), etc.
Secondly, there are residence and shared residence order (now called `lives with’ orders but they are still often known by their old name.
Again, these have no bearing on how a child divides his or her time with each parent. It’s reasonable to assume that a parent who has a residence order cares fo the children the majority of the time (which makes them the primary carer – which isn’t the same thing). In reality it’s possible – technically speaking for a parent who has the child 50% of the time to be the resident parent all the way to them having the children 100% of the time. But there is no link in law and how a child divides their time is another part which is…
The third part – the Child Arrangements Order (CAO – although this does include residence orders), formerly known as a contact order.
They’re often still known as contact orders and you won’t confuse the court if you this term (although it’s a little old-fashioned nowadays).
It’s the `unsexy’ part of an order – the bit most parents forget about instead of the `prize’ of residence. Along with PR, time with the children is what your main focus should be, because a residence order doesn’t confer the power on a parent that many of the people who fight for it so hard think it does.
Time with the children though?
It’s the chance to spend time with the people you love, make memories, raise your sons and/or daughters and be part of their lives. A parent with substantial time with a child doesn’t need a residence order to be a major part of their lives (and a court order doesn’t have to say who the resident parent is incidentally too).
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Conclusion
The tldr here is that there is no such thing as child custody.
Hollywood and American TV has a lot to answer for (as does bad advice on the internet). Using fictional dramas and information from other countries almost certainly isn’t going to help your case and may well damage it instead.
If you’re asking for it, I think you may be talking about a residence order – and if you are, having one almost certaintly doesn’t give your the power/rights/whatever that you think it is.
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