Your concern for your children’s safety is probably one of the main things giving you the strength to do something about the violence. It’s understandable that when the other parent has been violent, working out the care of children can be a difficult, frustrating and scary process. But there are people to help and support you and you can have some control if you know about your rights.
Women’s Refuge can help you deal with the issues around the care of children – which is what used to be called ‘custody and access’. It is also a good idea to get advice and assistance from a family lawyer.
What if the abuser is threatening not to let me see the children if I leave?
Don’t believe the threats: if you are the child’s legal guardian, then this doesn’t change because you leave a relationship. The court will only take away someone’s guardianship rights and responsibilities for a very serious reason, and leaving a violent relationship is not a reason at all – if anything it shows responsibility towards your children.
If you are leaving a situation of violence, try to take all your children with you. If for some reason you can’t take the children, you can still apply to the Family Court for the care of the children after you’ve left.
I think the abuser might hurt the children or try to take them away
If you have concerns for your children’s safety, ring the police immediately. You can apply to the Family Court for a ‘Without Notice Interim Parenting Order’, for immediate sole day-to-day care, without needing to tell your partner. You can apply for this if you believe that:
- there will be a risk to your safety or the safety of your children, or
- you or your children could suffer serious injury or undue hardship, or
- the abuser will try to take the children away.
You can apply for a Without Notice Interim Parenting Order even if you don’t take your children with you when you leave. The temporary order will have effect before the abuser is told about it if the judge agrees that you need it. Once you have the order, the police or Child, Youth and Family can help you get the children back.
The abuser will be able to defend the Without Notice Interim Parenting Order being made into a final order. They will be given a copy of your application and have a short period to contact the court and tell them that they are defending the order.
The decision on the final Parenting Order will be heard in the Family Court – either at a mediation conference or a hearing – to which you will need to attend.
Depending on your circumstances, it may not be a good idea to let the other parent see the children if you’re worried about their safety or your own after you have the temporary Parenting Order.
Discuss this carefully with your lawyer, and wait until very clear legal contact arrangements have been worked out through your lawyer. This may involve supervised or monitored contact between the children and the abuser. A lawyer for your children may be appointed to help you work out contact arrangements.
If your partner has already applied for their own Without Notice Interim Parenting Order, or been granted one, talk to your lawyer immediately about challenging it.
What if I’m worried that the abuser might take the children out of the country?
You can apply for a court order to stop the abuser taking the children overseas. If granted, the order is lodged on the Customs computer system so that the abuser will be stopped if they try to leave the country with the children.
If you want to take the children out of New Zealand yourself, make sure you have the care arrangements clearly sorted out through a lawyer first, otherwise the other parent can file a case to get you to return to New Zealand under the Hague Convention on Child Abduction.
How do I sort out care and contact arrangements?
If you have been in a relationship with a violent partner, we recommend that you don’t try to sort out day-to-day care and contact arrangements yourself. It’s usually safer to have a lawyer help you.
Many women have found that when there has been violence, these issues can be complicated. Also, some women find that their abusers try to use the legal system to continue to control and abuse them. If this happens, the help of a lawyer and a Women’s Refuge advocate will be important.
If, however, you and the other parent can come to some agreement about day-to-day care and contact that you feel is safe for you and your children, you can make an arrangement without going to the Family Court. It’s a good idea to write this agreement down and see a lawyer about making it a legally-binding document. This will mean that you can ask the Family Court for help if the other parent doesn’t stick to the agreement.
There are many different ways that care and contact arrangements can be worked out. You need to think about what works best and will be safest for you and your children.
When the other parent has been violent towards you it’s often better to have a set arrangement that lays down the exact times the children are to be collected and brought back. You might arrange for the other parent to collect the children from, and deliver them to, a friend or relative’s place, or for a friend or relative to take them to the other parent and bring them back – at least in the beginning.
What if there has been serious violence or you are afraid of the children’s father?
In this situation you should consider applying for a Without Notice Protection Order, or at least apply to the court on an urgent basis to have the sole day-to-day care of your children.
If you tell the court that physical or sexual abuse has occurred – either against you or your children – a Family Court judge can grant you a Protection Order and/or day-to-day care order without notice to the abuser.
These will be temporary, but only allow the abuser to have supervised contact with the children, such as through Barnardo’s or with a relative, unless the court can be satisfied of the children’s safety.
The allegations of abuse have to be proved true or false through a court hearing, called an allegation hearing. This is also known as a ‘section 60’ hearing. A lawyer may be appointed to act for your child/ren.
After the allegation hearing, the final arrangements for care and contact can be established. You might be able to do this through separate counselling, or a mediation conference, or at a court hearing. It will depend on what is safe for you, and whether you and the abuser can come to any agreements.
When a decision is reached about the care of children, it can be made into a Consent Order. This is a court order and means that you can go back to the court to have the order enforced if the other parent doesn’t stick to what was agreed.
If you can’t come to an agreement about the care of children at mediation, the judge at a Family Court hearing will decide.
How does the judge make a decision?
Before the hearing, the judge will appoint a lawyer to act for the children if this has not already been done, in order to find out what the children’s views are and what they want to happen. The judge may also ask for a report from a psychologist or a social worker on the children’s attachments to each parent/home situation, or seek a report on the child’s cultural background.
The judge will be considering the welfare and best interests of the children in their decision. The judge will consider a number of factors like the children’s safety; their physical, emotional and educational needs; the attitudes and abilities of both parents; and the home environments.
Decisions made in the Family Court are binding. This means that if one of you does not stick to the decision, the court can enforce it.
What can I do if the care and contact arrangements aren’t working out?
Even though you may have reached an agreement or a court order has been made, there can still be problems with how care of children works out in reality. You might be worried the other parent is not sticking to the court order’s requirements, be concerned that the children are still not safe, or still being harassed and threatened by the other parent.
Here are some options for you:
- If you suspect the children are being abused or neglected by the other parent, call the police or Child, Youth and Family.
- Keep a record of the times the children are brought back late, or the other parent doesn’t turn up when they’re meant to, or breaks promises.
- Keep a record of what the children say is happening when they are with the other parent, and any concerns you have.
- Keep a record of any time the other parent harasses or threatens you.
- Report to the police any harassment, abuse and threats from the other parent.
- Talk to your lawyer about the problems. Sometimes, if your lawyer calls the other parent’s lawyer, this is enough to make the parent change their behaviour.
- If there is a serious breach of the court order – for instance, if the abuser is refusing to give the children back after contact time with them – you can apply to the Family Court for a warrant that a social worker or a police officer will use to collect the children.
Most of the time, it’s not a good idea to stop the other parent from seeing the children when they are meant to, as it might reflect badly on you if you go back to court. It is an offence to breach a court order that gives someone rights of contact.
If things aren’t working out, you can go back to the Family Court and ask for the arrangements to be changed, made more specific, or to be enforced. You can’t, however, force the other parent to exercise their contact rights if they don’t want to. It can be a difficult and frustrating process, so make use of support people to help you stay strong.
How can I make care and contact arrangements safer for the children and me?
Here are some suggestions:
- Use your lawyer to help make or change any care and contact arrangements.
- Put all arrangements and agreements in writing and make them as specific as possible – citing times and places to hand over care of the children, for instance – so there is less room for misunderstandings. Try to use neutral territory for these exchanges, such as a mutual friend’s home or a public place like a shopping mall. If you have to see the abuser, take someone with you. Don’t go into a dangerous situation.
- If the other parent threatens, harasses or hurts you when they come to see the children, report it to the police, whether or not you have a Protection Order.
- Make a Safety Plan.
What if I don’t want to have the care of my children, or I don’t think I can cope?
Many mothers feel overwhelmed, tired, angry and stressed when going through a relationship break-up, and even more so when they have left an abusive relationship. On top of this, going through legal battles over children and property can be exhausting.
Sometimes trying to look after the children can just feel like too much. If you feel like you’re not coping with your children we encourage you to talk to your lawyer, Women’s Refuge advocate, or social worker about your options and to get support. There may be another whānau/family member who can look after the children for a while. Work and Income can also pay for some childcare to give you some time out.
More information about care of children is in our book Fresh Start: A Practical Guide for Women Wanting To Be Free From Abuse.
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