How can you prepare child relocation from or within New Zealand? What if your child has been relocated without your consent?
New Zealand is a member of the Hague Convention on Child Abduction.
The agreements in the Convention are implemented through the Care of Children Act 2004.
We will explain what this means for your options.
Lawyers and mediators in New Zealand
We provide a list of lawyers and mediators in New Zealand who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.
Parental authority: New Zealand
Under the Care of Children Act 2004 both parents are usually automatically guardians of the child at birth. Where a father is not automatically a guardian he can become a guardian by having his details included (with the consent of the mother), on the child’s birth certificate, or apply to the court to be appointed a guardian.
Rights of custody
For the purpose of the law relating to child abduction, ‘custody rights’ mean rights relating to the care of the child and, in particular, the right to determine the child’s place of residence. The New Zealand courts have decided that these custody rights also include the right to contact, access, or visitation with a child.
Traveling with children: New Zealand
If you want to travel abroad with your child, it is wise to carry a permission from the other parent, if the other parent also has custody, or to carry the documents that proof you have sole custody.
Child relocation: New Zealand
Guardianship direction or parenting order
If a parent wants to move to somewhere else in New Zealand and the other parent doesn’t agree to this, he or she can apply to the Family Court for a guardianship direction and a Parenting Order, or for a variation to an existing order.
In making a decision in these cases, the Family Court will consider:
- the child’s relationships with the two parents
- the parents’ relationship with each other
- what care arrangements would look like after the move (for example, how far away the child would be from the other parent, and what the cost of travel would be, taking into account the parents’ financial resources)
- the child’s age and ability to adapt
- what the child wants
- the well-being of the parent who wants to move
- the advantages for the child of a new environment.
The Care of Children Act recognises that it’s generally in a child’s best interests to continue having a relationship with both parents. It can therefore be difficult for a parent who wants to move to convince the Family Court that this would be in the child’s best interests.
If a parent wants to prevent the other parent from relocating (with) the child, he or she can apply to the Family Court for a guardianship direction or a parenting order or both, preventing the child from being moved.
If a child has already been relocated to another part of New Zealand, the left behind parent can also apply for a guardianship direction and/or a parenting order from the Family Court.
Child abduction: New Zealand
New Zealand is a party to the Hague Convention on Child Abduction. The obligations that the convention creates are implemented through the Implementation Act international child abduction. The obligations concerning acces applications are implemented through the Guardianschip Amendment Act 1991.
For more information, you can visit the website of the Ministry of Justice. The Central Authority of New Zealand is part of the Ministry of Justice.
The Central Authority is a first point of contact if you want your children to return. They will file your application to the District Court near to where your child is staying. They will also the other parent to volultarily return the children or to participate in mediation. You can also contact a law practisioner instead of the Central Authority, to start a procedure for you. locate your child.
If you are not sure where your child is staying, the Central Authority will get the help of the police to
The District Court will set up an initial hearing within a few days. The whole procedure will take 6 to 12 weeks. Any mediation runs parallel with the court procedure, minimising any delay. After a 6 week period, from the date of filling in the court, the Central Authority may request a statement of the reasons why the application has not been determined within a 6 week period.
Cases are generally determined by way of submissions only and neither party is required to be present or give evidence at the hearing. The left behind parent can be present during a hearing using a video connection.
The parents can appeal against the court decision. In New Zealand there are three levels of appeal: High Court, Court of Appeal and Supreme Court. Leave must be granted before an appeal can go to the next appellate level above the High Court.
The appeal must be filed within 21 days and the appeal procedure can take upto 3 months.
Whether or not a child is interviewed, depends upon the particular case and is always at the discretion of the judge hearing the case. The child can be heared by an independent expert who writes a report for the court, of by the child’s own legal representative.
Mediation is possible at any stage of the procedure, including prior to any application. Once the application is filed, mediation can run parallel with the procedure.
A return order can be suspended ending an appeal at the request of either party and after determination by the judge.
The judge will decide on a case-by-case basis who is to make arrangements for the return and which parent is responsible for the costs.
If a parent does not comply with a return order, the Central Authority or the parent can apply for enforcement. This can lead to an intervention by government agency (police, social welfare), the removal of the child from the abducting party, or an order placing the child under supervision.
If you think your child is in New Zealand, but you do not know exactly where, the Central Authority can help you locate your child.
If you fear that your child will be abducted from New Zealand to another country, or otherwise disappear from view, various measures can be taken:
- child’s passports to be deposited with authorities
- alleged abductor’s passport to be deposited with authorities
- obtain orders to prevent the removal of the child
- issuing border and/ or port alerts
- temporary placement of child in institutional care.
You can get an immediate CAPPS listing via Interpol, but they wil require a guarantee that the application will be filed.
A parent who does not live in New Zealand, but who does need a lawyer in New Zealand for a return procedure, can find representation throught the Central Authority. They will arrange legal representation. And the legal assistance will be for free. This free legal assistance includes the costs of translator, court fees etc.
If the left behind parent from outside New Zealand wishes to appeal against a rejection of the application for return of the child, the Central Authority will asses if the parent gets free legal aid again, based on the merits of the case and the changes for succes in the appeal. If free legal aid is then denied, the parent will have to instruct private counsil and take care of the costs.
If the alleged abducting party wishes to receive free legal aid, the free legal assistance is jubject to a means and merits test in accordance with the Legal Services Act 2000.
Criminal law : New Zealand
Sec 78 Care of Children Act says every person commits an offence if a person contravenes, or prevents compliance with a parenting order. The penalty is imprisionment for a term not exceeding 3 months, or a fine not exceeding $2500.
Under sec 210 of the Crimes Act 1961, every person is liable to imprisonment for a term not exceeding 7 years who, with intent to deprive a parent or other person having the lawful care or charge of a young person, unlawfully takes away or detains the young person.
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Relevant case law in New Zealand
Article 15 Determination M. v. H. New Zealand High Court, 21 March 2005, NZFLR 623 The child, a boy, was almost four years old at the date of the alleged wrongful removal. He had spent his entire life in New Zealand. His parents were not married and had ended their...