Issues About the Current Law
Most of the concerns about the current law fall into four categories:
- Modernising language and key concepts. The Act uses terms which are outdated and invite a combatant rather than conciliatory approach to resolving custody and access issues.
- Children and young people s rights. Should there be an even greater or a different emphasis to ensure children and young persons welfare is paramount?
- Rights and responsibilities of parents. Should there be a greater focus on the rights and responsibilities of parents for the upbringing of their children?
- Recognition of the wider family/whanau and of cultural diversity.
Modernising language and key concepts
The language in the current law sounds a lot like property law. Custody is defined as "the right to possession and care" of a child. Guardianship is defined to include "the right of control" over the child's upbringing. Access to the child is referred to as a "right" that vests in the parent. These are not the sorts of terms used when parents are living together. This is not the language of parenting. On separation people refer to one parent being awarded custody and the other parent obtaining access rights. This structure and language encourages notions of "winning", "losing" and "ownership" of children, and many people think that this is unhelpful when parents are separating and trying to sort out these very difficult issues.
A change in terminology could help to emphasise the child or young person's rights and interests and the parent s responsibilities. It may also help change the focus from dispute to consensus. Some other countries have moved away from using the terms "guardianship", "custody" and "access" (see Appendix 1).
4.1 How could the law better reflect a more consensual approach to custody and access?
4.2 What sort of terms and key concepts would do this?
4.3 Should guardianship , custody and access be replaced in the law by a broader range of options for the Courts to consider? What might these include?
Children and young people's rights
In making decisions about custody and access there is the potential for conflict between the interests of the child and the interests of a parent.
The Act clearly states that the welfare of the child must be the first and paramount consideration whenever there are proceedings under the Act. However, most of the Act focuses on the custody and access rights of the parents. Concerns have been raised that rather than focussing on the rights of the parents, the Act should focus on the rights of the child. What do you think?
4.4 Do the provisions of the Act ensure that the best interests of children and young people are the prime focus? If not, what changes need to be made to ensure this happens?
4.5 Can we do more to comply with the UNCROC principles (see Appendix 2) , which focus on ways the State can advance a child s welfare?
4.6 Is there a need to better ensure that children and young people are fully informed, that their views on custody and access are sought and taken into account and that they are participating to the fullest extent appropriate? If so, how could this be done?
4.7 One possibility is that the law could include guidelines to help the Court determine which course of action would best promote a child or young person s welfare. These could include the child or young person s wishes and the need for real and ongoing parental contact (where appropriate) . What do you think of these? Any other suggestions?
Parental rights and responsibilities
In law, both parents normally retain legal responsibility for major decisions affecting their children, when they separate. However, the children will usually live with one parent for most of the time. How to enable both parents to contribute in an ongoing way to fulfilling their parental responsibilities can be a difficult issue.
As already discussed, the current language of the Act focuses on parental rights rather than responsibilities. It may be that more emphasis on parents responsibilities towards their children would be a better focus for resolving issues when parents separate .
4.8 What are the key issues or concerns about the rights and responsibilities of parents? What ideas do you have for resolving these?
4.9 Do you think there should be a greater emphasis in the law on the responsibilities of parents, instead of their rights regarding their children?
4.10 Should the law encourage an emphasis on ongoing responsibilities of both parents? How could it do this?
4.11 How else can parents be encouraged to take greater responsibility for their children? For example, some have suggested the use of parenting plans which would be based on agreement between the parties and be sanctioned by the Court. Do you have any views on this idea?
Recognition of wider family/whanau and cultural diversity The current law is mainly focussed on the parents and the child or young person. It has very little recognition of the role which wider family members/whanau might have in bringing up a child, yet it is quite common in New Zealand for a broader group of adults to help raise a child, with grandparents and aunts and uncles often being very important in the nurturing of a child.
The Act, for instance, has only very limited provision for access rights to be given to members of the wider family/whanau.
This is an issue for many New Zealanders, and is of particular concern to Maori and Pacific families because of Maori and Pacific families cultural values and approach. In Maori and Pacific families the wider family/whanau is very often central to a child or young person s life.
Step-parents and others who may be seen as part of the child's social family , although not related, can also have relationships with the child or young person which it may be important for the child or young person to have preserved.
4.12 Should a wider group of adults be considered when thinking about the care of children or young people when parents part? If so, who?
4.13 How could the values and aspirations of Maori be incorporated in the Act?
4.14 Should the law especially recognise the role which is played by the wider family/ whanau in the raising of Maori and Pacific children? Would including this matter in guidelines to the Family Court be helpful? Have you suggestions for other ways to make sure our law supports the family structures of all New Zealand's people?
4.15 Should members of the wider family/whanau, such as grandparents, have the right to apply to the Court for the ability to have ongoing contact?
4.16 Should others, such as step-parents, who have had a role in the upbringing of the child or young person, have the ability to apply to the Court for ongoing contact?
4.17 What would be the best way to obtain the input of wider family/whanau members in relation to custody and access matters?
