The father and mother of a child are usually joint guardians of the child under Section 17 of the Care of Children Act 2004 ('the Act'). Under s15 of the Act guardianship of a child is defined as all duties, powers, rights, and responsibilities that a parent of a child has in relation to the child.
Parents who have separated have a duty under Section 16 of the Act to consult with the other parent of the child about important guardianship matters such as domicile, education, religion and medical treatment.
Under Section 16 of the Act, parents have a responsibility to:
- provide care for the child;
- contribute to the child's intellectual, emotional, physical, social, cultural, and other personal development; and
- determine for the child, or help the child to determine, matters of importance.
Parents must consult with one another and make these decisions in accordance with what is in the best interests of the child. It follows that if one parent wishes to relocate out of New Zealand with a child then the permission of the other guardian must be obtained.
If both parents mutually agree to a child relocating to a place outside of New Zealand, they can record this in a parenting agreement. The parenting agreement will record the child's living arrangements that the parents have jointly agreed upon. Parenting agreements are often less time consuming and less costly in comparison with having the matter dealt with by the Family Court. Parents can also elect to have their parenting agreement made into a formal Court Order by making an application to the Family Court.
If the parent remaining in New Zealand does not consent to the child relocating to another country, they can make a Border Alert (CAPPS) listing with Interpol, alerting Customs and the New Zealand Police in order to prevent the child from leaving the country. An urgent application must can be filed in the Family Court for an Order Preventing Removal of the child from New Zealand. If this Order is granted, it will remain in place until the child is 16, or until a further Order is made by the Court. Such an application must be made in order to maintain a Border Alert in any event.
When parents cannot come to an agreement, the parent wishing to relocate the child to another country can apply to the Family Court for permission. The threshold is high because relocation overseas is likely to affect the child's relationship with the parent remaining in New Zealand. Under Section 4 of the Act, the welfare and best interests of the child must be the first and paramount consideration when making decisions for the child.
If the child leaves New Zealand without the prior consent of both parents, the child may be returned under the Hague Convention on the Civil Aspects of International Child Abduction ('Hague Convention'). There are 89 countries and entities that are signatories to the Hague Convention, including New Zealand. The Hague Convention would return the child to New Zealand so that the dispute can be heard in New Zealand.
While the focus of this article has been relocation overseas it should be noted that permission must be obtained from a child's other guardian or guardians if a parent wishes to relocate within New Zealand and even within a large city.
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