Guardianship (Shared Parenting) Amendment Bill
Guardianship (Shared Parenting) Amendment Bill
Member’s Bill
Explanatory note
The purpose of this Bill is to significantly improve the welfare of children whose parents separate or divorce.
Children inevitably suffer when their parents elect to live apart. The continued absence of one parent is a major source of anguish in a child’s life which can be exacerbated by the competition between parents caused by custody and access inequalities.
Currently, the most frequent outcome for families when parents separate, is physical sole custody, whereby the children spend the majority of their time with one parent. The parent who gets sole physical custody effectively gains control of the children and hence commands a strong position in negotiations with the non-custodial parent for their relationship with the children.
In other countries where they have adopted an approach that more closely reflects the changes in society and the changing roles of parents within the family unit, children are seen to do better. This Bill seeks to emulate that success.
Special provisions applying to custody and access
The Bill sets out special provisions that apply to custody and access applications. It emphasises that the purpose of proceedings is to ensure that children receive adequate and proper parenting to help them achieve their full potential and that parents fulfill their duties, and meet their responsibilities concerning the care, welfare and development of their children.
The four principles underlying that purpose are that:
- a child has the right to know and be cared for by both parents, regardless of whether his or her parents are married, separated, have never married or have never lived together: and
- a child has a right of contact, on a regular basis, with both parents and with other people significant to his or her care, welfare and development; and
- parents share duties and responsibilities concerning the care, welfare and development of their child; and
- parents should agree about the future parenting of their child.
Shared parenting, as described in this Bill, has been highly successful in other western countries over the past two decades. It has been shown to improve the welfare of children, reduce arguing between parents, and improve cohesion of the two parent family unit.
Under shared parenting, the starting point is that both parents are equally important to the children and it is in the best interests of the children to spend equal physical time with each parent. Where the court makes an order for custody or access, shared parenting should be given first priority unless it would be contrary to the best interests of the child. The current position where domestic violence occurs is preserved. Where there has been violence against the child, other children in the family or the other party, no order can be made unless the Court is satisfied that the child will be safe.
The Bill makes provision for parenting plans to implement a custody order. The parents (or a judge, if one is involved) will be able to mutually agree to vary custody arrangements from the 50:50 split of time. Such changes should be the mutual decision of the parents, taking account of the needs of the children.
Unequal sole custody and other custody arrangements will continue to be options, but they will be ranked as lower alternatives. Alternatives will be considered if for example, one parent fails to cooperate with the other, if one parent tries to alienate the children against the other parent, or if shared parenting would be contrary to the child’s best interests.
The use of false allegations by one party against another to win custody will be an offence. Any false allegations that are made knowingly will incur fines and custody arrangements can be reviewed.
Government departments will be required to publish information describing the uptake and impact of the various custody arrangements.
New Zealand has a long tradition of gender equality, including equal voting rights, equal splitting of matrimonial property, and equality in education and the work force. Shared parenting within the family unit is the only realistic long-term public policy option for New Zealand to adopt.
Openness of proceedings
The Bill makes changes to the Guardianship Act to allow greater transparency and openness of proceedings while ensuring the privacy of individuals is protected. The Bill requires that proceedings are open to the public while allowing the Court to ask any person to leave the courtroom where it is in the best interests of the child. The identity of parties and witnesses is protected through a restriction in publication of Court proceedings. The Bill makes it an offence to publish, broadcast, televise or otherwise disseminate the identity of parties, witnesses or other persons involved in the proceedings.
Dr Muriel Newman
Guardianship (Shared Parenting) Amendment Bill
Printer: Take in contents
The Parliament of New Zealand enacts as follows:
1. Title
2. Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.
- Interpretation
- New heading and sections 10F-K inserted
- New section 20A substituted
- New section 20B inserted
- New Section 27 substituted
Section 2 of the principal Act is amended by inserting, in their appropriate alphabetical order, the following definitions:
"shared parenting
means joint custody of a child, split equally (50:50) between the parents (or other parties)"joint custody
means joint physical and joint legal custody of a child given to both parents (or other parties), in such a way as to guarantee the child frequent and ongoing contact with both parents (or other parties)"legal custody
means the decision-making rights, responsibilities, and authority relating to the health, education and welfare of a child"parental alienation
means conduct or behaviour that has the effect of denigrating or degrading a parent (or party) involved in custody issues, to the relevant children in custody"physical custody
means a child resides with, or under the care and supervision of a parent (or other party)"sole custody
means one parent (or one other party) has physical and legal custody of a minor child."
The principal Act is amended by inserting, after section 10E, the following heading and sections:
"Special provisions applying to custody and access
"10F Principles applying to the parenting of children
"(1) The purpose of any proceedings concerning the custody of or access to a child, is to ensure that—
"(a) children receive adequate and proper parenting to help them achieve their full potential; and
"(b) parents fulfill their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
"(2) The principles underlying this purpose are that, unless it is contrary to the child’s best interests—
"(a) a child has the right to know and be cared for by both parents, regardless of whether his or her parents are married, separated, have never married or have never lived together: and
"(b) a child has a right of contact, on a regular basis, with both parents and with other people significant to his or her care, welfare and development; and
"(c) parents share duties and responsibilities concerning the care, welfare and development of their child; and
"(d) parents should agree about the future parenting of their child.
"10G Priorities of custody
"(1) Where the Court makes an order under section 11 or 12, custody must be awarded in the following order of preference, unless it would be contrary to the best interests of the child:
"(a) shared parenting by both parents; then
"(b) joint custody to both parents; then
"(c) sole custody to either parent; then
"(d) shared, joint or sole custody to another person or other persons.
"(2) This section is subject to section 16B.
"10H Sole custody consideration
"(1) In making an order for sole custody, the Court must consider, among other factors, which parent is more likely to allow a child frequent and continuing contact with the non-custodial parent.
"(2) The burden of proof that shared parenting would not be in the best interests of the child is on the parent requesting sole custody.
"10I Court must state reasons shared parenting not awarded
If a court does not award shared parenting custody, then the reasons must be explicitly stated in the judgment.
"10I Parental cooperation
"(1) Where the Court makes an order for shared parenting or joint custody, the parents of the child or other persons granted custody must exchange information concerning the health, education, and welfare of the child.
"(2) Parents or other persons granted custody must work cooperatively and confer with one another in order to reach agreement about the future parenting of the child.
"10J Parenting plan
"(1) Where the Court finds that shared parenting or joint custody is in the best interests of the child, it may require the parents or other persons to submit a parenting plan to implement the custody order.
"(2) For the purposes of this Act,—
"parenting plan means an agreement that—
"(a) is in writing; and
"(b) is or was made between the parents of a child; and
"(c) deals with the matters in subsection (3).
"(3) A parenting plan may deal with one or more of the following:
"(a) the person or persons with whom a child is to live;
"(b) contact between a child and another person or other persons;
"(c) financial support of a child;
"(d) any other aspect of parental responsibility.
"(4) An agreement may be a parenting plan whether—
"(a) made before or after commencement of this section; and
"(b) made inside or outside New Zealand; and
"(c) other persons as well as the child’s parents are also parties; and
"(d) it deals with other matters as well as matters referred to in subsection (2).
"(5) A parent or both parents may submit a parenting plan for approval by the Court.
"10K Variation and revocation of parenting plans
"(1) Where the Court has approved a parenting plan the parents may agree to vary the physical care arrangements for the child.
"(2) If parents cannot agree on a variation of a parenting plan approved by the Court, the Court may consider an application to vary the parenting plan.
"(3) A parenting plan may be revoked by agreement in writing between the parties to the plan."
The principal Act is amended by repealing section 20A and substituting the following section:
"20A Offences
"(1) Every person commits an offence against this Act who—
"(a) without reasonable excuse; and
"(b) with intent to prevent an order for custody of or access to a child being complied with—
frustrates, hinders or prevents custody of or access to a child by a person who is entitled under the order to custody of or access to the child.
"(2) A person frustrates, hinders or prevents custody of or access to a child if he or she
"(a) prevents the hand over of a child; or
"(b) carries out parental alienation; or
"(c) knowingly makes false allegations of sexual abuse; or
"(d) knowingly makes false allegations of domestic violence.
"(3) An offence under subsection (1) is not limited to the matters set out in subsection (2).
"(4) Every person who commits an offence against this section is liable to—
"(a) a fine not exceeding $1000; and
"(b) the costs incurred by the aggrieved parent or party because of the non-cooperation.
"(5) Nothing in this section limits the power of the Court to punish a person for contempt of court."
The principal Act is amended by inserting, after section 20A, the following section:
"20B Review where offence committed
"(5) Where any person is convicted of an offence under this section, the Court may on application—
"(a) review any custody and access orders in force; and
"(b) order the alteration of any orders for custody or access—
to ensure that a child has the right to know and be cared for by both his or her parents and have a right of contact, on a regular basis, with both parents and with other people significant to his or her care, welfare and development."
The principal Act is amended by repealing section 27, and substituting the following section:
"27 Proceedings open to the public
"(1) S
ubject to subsection (2) and section 27A, the hearing of any proceedings under this Act are open to the public."(2) Where it is in the best interests of the child, the Judge may ask any person, including a witness, to leave the courtroom.
8 New section 27A substituted
The principal Act is amended by repealing section 27A, and substituting the following section:
"27A Restriction on publication of court proceedings
"(1) Every person commits an offence against this Act who publishes, broadcasts, televises, or by electronic means or otherwise, disseminates to any person or to the public by any means, the account of any proceedings, or of any part of any proceedings, under this Act that identifies—
"(a) a party to the proceedings; or
"(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
"(c) a witness in the proceedings.
"(2) Every person commits an offence against this Act who, publishes, broadcasts, televises, or by electronic means or otherwise, disseminates to any person or to the public by any means, a list of proceedings under this Act that identifies the names of the parties to the proceedings.
"(3) Subsections (1) and (2) do not apply to:
"(a) any report published with the leave of the Court:
"(b) the display of a notice in the premises of the Court.
"(4) A person convicted of an offence against this section is liable,—
"(a) in the case of an individual,—
"(i) to imprisonment for a term not exceeding 3 months; or
"(ii) to a fine not exceeding $2000:
"(b) in the case of a body corporate, to a fine not exceeding $10,000.
"(5) This section does not limit—
"(a) the provisions of any other enactment relating to the prohibition or regulation of the publication of reports or particulars relating to judicial proceedings; or
"(b) the power of any Court to punish any contempt of Court.
"(6) This section does not prevent the publication of any report in any publication that—
"(a) is of a bona fide professional or technical nature; and
"(b) is intended for circulation among members of the legal or medical professions, officers of the Public Service, psychologists, advisers in the sphere of marriage counselling, or social welfare workers."
9 New section 33A inserted
The principal Act is amended by inserting, after section 33, the following section:
"33A Publication of information
"(1) The Department of Courts must include in its annual report the following information:
"(a) outcomes of all custody court cases for the year:
"(b) different types of custody awarded:
"(c) reasons why shared parenting was not awarded:
"(d) numbers of custody cases in which accusations of sexual abuse or domestic violence were made:
"(e) gender of the parents or parties involved for each custody outcome:
"(f) numbers of cases in which accusations of sexual abuse or domestic violence were made, which also had custody implications which were not contested in court.
"(2) At each national census, the Department of Statistics must ensure information is collected and published on the accumulated number of different custody arrangements in the community (both court awarded and non-court awarded), and the level of total benefits being paid."