THE BEST INTERESTS OF THE CHILD

If you are looking for a family lawyer in Auckland parents trust, understanding how the Family Court decides what happens to your children is essential. The best interests of the child is the central legal standard running through every decision made under the Care of Children Act 2004, from day-to-day care and contact through to guardianship and relocation. This guide expands on our main article on child custody in New Zealand and explains how this standard works and how it is applied in practice.

This page is part of a wider series on New Zealand family law. Related topics are covered in the following guides:

• Guardianship and Decision-Making
• Parenting Orders Explained
• Resolving Parenting Disputes
• Safety Concerns and Family Violence
• Relocation Disputes
• The Procedural Roadmap

THE PARAMOUNT CONSIDERATION

Section 4 of the Care of Children Act 2004 provides that the welfare and best interests of the child must be the first and paramount consideration in any proceeding involving guardianship, day-to-day care, or contact. A child’s welfare is not simply one factor to be balanced against a parent’s wishes. It is the standard against which every other consideration is measured, and it overrides a parent’s own preferences wherever there is a genuine conflict.

The Act is also explicit that a child’s best interests must be assessed on their particular circumstances, and that a parent’s conduct is only relevant to the extent it affects the child’s welfare. Importantly, the Act states that it must not be presumed that placing a child in the day-to-day care of a particular person will, because of that person’s sex, best serve the child’s welfare. In other words, neither a mother nor a father is favoured by law simply because of their gender; every case turns on the individual child and family.

THE SECTION 5 PRINCIPLES

Section 5 of the Act sets out the principles the court must weigh when working out what serves a child’s best interests. These include protecting a child from all forms of violence, the primary responsibility parents and guardians hold for a child’s care and upbringing, the value of consultation and cooperation between parents on important decisions, the benefit of continuity in a child’s care, routine, and relationships, and the importance of an ongoing relationship with both parents.

No single principle is given automatic priority over another. The Supreme Court confirmed this approach in Kacem v Bashir, holding that the weight given to each principle depends on the facts of the individual case, though a child’s safety is never compromised for the sake of another principle. This weighing exercise sits at the heart of decisions about parenting orders and guardianship alike.

CULTURE, WHĀNAU, AND IDENTITY

New Zealand law places particular weight on a child’s connection to their culture, language, and whānau. Section 5 recognises the importance of preserving and strengthening a child’s identity, including their relationship with wider family, and for Māori children, their whakapapa and connection to hapū and iwi. This can influence decisions about where a child lives, who they spend time with, and how their cultural upbringing is supported.

Where cultural or whakapapa considerations are significant, the court may seek a report from a cultural advisor to inform its decision, in the same way it might seek a report from a social worker or psychologist. This reflects a broader recognition, echoed in related legislation such as the Oranga Tamariki Act 1989, that a child’s wellbeing is closely tied to their connection to family, whānau, and culture.

WHAT DOESN’T DECIDE A CASE

Because the best interests test is about the child rather than the parents, some things that parents assume will matter often carry little weight. A parent’s income, their new relationship, or general lifestyle choices are usually irrelevant unless they genuinely affect the child’s welfare. Fault for the relationship breakdown itself does not determine care arrangements. Section 4 of the Act is explicit that a parent’s conduct is relevant only to the extent it affects the child’s wellbeing.

This can be a difficult adjustment for separating mothers and fathers, who may feel that past behaviour by the other parent should count against them. In most cases, the focus instead falls on each parent’s capacity to meet the child’s day-to-day and long-term needs, and their willingness to support the child’s relationship with the other parent.

FAMILY VIOLENCE AND SAFETY

Section 5A of the Care of Children Act 2004 requires the court to take any family violence into account when applying the best interests principles, and a child’s safety is treated as a threshold consideration rather than one factor among many. Where family violence is present, it can affect day-to-day care, contact, and guardianship arrangements, and may justify supervised contact, protective conditions, or urgent orders.

This is a significant area in its own right, covering Police Safety Orders, Protection Orders made under the Family Violence Act 2018, and the involvement of Oranga Tamariki in serious cases. Our guide to safety concerns and family violence explains these protections, and how they interact with a parenting or guardianship application, in more detail.

THE CHILD’S OWN VIEWS

Section 6 of the Act requires that a child’s own views be ascertained and given appropriate weight, according to their age and maturity, in any proceeding affecting them. A young child’s views may carry less weight than those of a teenager, but the court must consider them regardless of age, and a child’s perspective often shapes the practical detail of an arrangement, such as how holidays or special occasions are shared.

Where the court has particular concerns about a child’s safety or wellbeing, it may appoint a lawyer for the child under section 7 of the Act. This lawyer meets with the child, presents their views to the court, and provides independent advice focused on the child’s best interests throughout the proceeding, including at any conference or hearing described in our procedural roadmap.

A child does not usually have to attend court or give evidence directly. Instead, their views are typically gathered by the lawyer for the child, a specialist report writer, or a cultural advisor, and presented to the judge on the child’s behalf. This approach is designed to protect children from the adversarial nature of court proceedings while still ensuring their voice is genuinely heard in decisions that affect their daily life.

HOW THE COURT APPLIES THESE PRINCIPLES

In practice, the court applies the best interests standard to every type of dispute under the Care of Children Act 2004, though the balance of factors looks different depending on the situation. In a straightforward day-to-day care dispute, continuity of care and an ongoing relationship with both parents often carry significant weight. In a relocation dispute, the court must weigh the benefits of the move against the disruption to a child’s existing relationships and routine, a balancing exercise explained further in our guide to relocation disputes.

In many cases, both parents are loving and capable, and the dispute is less about unfitness than about differing views on schooling, discipline, or day-to-day routines. Where this is the case, the court often looks for the arrangement that causes the least disruption to a child’s existing relationships and sense of stability, rather than searching for a single better parent.

Wherever possible, parents and guardians are encouraged to apply these same principles themselves when negotiating privately or through Family Dispute Resolution, rather than leaving the decision to a judge. A parenting arrangement reached by agreement, guided by the child’s best interests, is often more durable for families than one imposed by the court.

Best Interests of The Child FAQ