Can I Get Sole Custody in New Zealand? An Auckland Family Lawyer Explains Guardianship and Parenting Orders

“Can I get sole custody?” is one of the first questions parents ask me after separation. Behind it usually sits a more specific worry: Can I make the decisions about my child’s school and health without having to agree them with my ex? As an Auckland family lawyer, I find the answer surprises many parents, because New Zealand law no longer talks about “custody” at all, and it separates two quite different ideas: day-to-day care and guardianship. Understanding the difference is the key to knowing what you can, and cannot, achieve.

Custody and Access: Why the Words Have Changed

The Care of Children Act 2004 (the Act) replaced the old language of “custody” and “access”. Today the law speaks of day-to-day care (who the child lives with and who looks after them from day to day) and contact (time spent with the other parent or other important people). The paramount consideration in every decision is the child’s welfare and best interests (section 4), applying the principles in section 5, including that a child should have a relationship with both parents and should have continuity in their care.

So while many people still say “sole custody”, the real legal questions are about parenting orders, guardianship and how decisions are made.

Parenting Orders: Who Cares for the Child

A parenting order under section 48 deals with practical arrangements. It can say who has the role of providing day-to-day care, and what contact the other parent or others will have. A parent may have day-to-day care of the children most of the time, with the other parent having defined contact, or the arrangement may be shared.

Importantly, a parenting order is about the day-to-day picture: where the child sleeps, who takes them to school in the morning, and who is responsible for routine matters. It does not, by itself, remove the other parent’s role in the bigger decisions about the child’s life.

Guardianship: Who Makes the Important Decisions

Guardianship is different. Under section 15, a guardian has all the duties, powers, rights and responsibilities a parent has in relation to the upbringing of the child. Most parents are joint guardians, and that continues after separation, whoever the child lives with.

Which Decisions Must Be Made Together?

Under section 16, guardians must generally act jointly and consult on important matters affecting the child. These typically include significant health care decisions, choice of school, religion and whether the child will live overseas. By contrast, routine, day-to-day decisions are generally made by the parent who has the child in their care at the time.

Can One Parent Make These Decisions Alone?

The short answer is: not simply because they have day-to-day care. A parent who has the children most of the time does not automatically gain the exclusive right to decide on schooling or non-routine medical treatment. Both guardians have equal standing, and unilateral decisions can lead to court intervention.

What Can Be Done If You Want More Decision-Making Power?

There are several pathways, each with its own threshold and consequences.

1. Reaching Agreement

Parents can agree who will take the lead on particular issues, with arrangements recorded clearly. Family Dispute Resolution is generally required before applying to the Family Court, with exceptions such as urgency or family violence.

2. Asking the Court to Settle a Dispute Between Guardians

Under section 46R, if guardians cannot agree on an important matter, either may apply to the court for a direction, and the court may make any order it considers proper. This is the usual route for disputes about schooling or medical treatment. The court decides the particular issue, rather than handing one parent permanent control over everything.

3. Removing a Guardian

Section 29 allows the court to remove a guardian, but only in limited circumstances, such as where a guardian is unwilling to perform the duties of guardianship, or has some very serious reason making them unfit. The threshold is high, and the court is guided by what is best for the child.

4. Seeking Additional Guardians

In some cases other people, such as a stepparent or grandparent who has been closely involved, can be appointed as additional guardians (sections 23 and 27).

What Real Cases Show

Lawson v Pugh: No Blanket Rule on Vaccinations

In this Family Court case, parents disagreed about whether a child should have the MMR vaccination. The Judge noted that New Zealand has no blanket law requiring every child to be vaccinated, and that it is a guardianship decision for parents. If they cannot agree, the court decides based on the child’s welfare and best interests.

GF v Chief Executive of Oranga Tamariki: The Court as the Decision-Maker

In a 2020 High Court case, the court directed that a four-year-old girl receive the standard childhood vaccinations, despite her father’s opposition. The decision was reached on the child’s welfare and best interests, not on either parent’s preference. This case shows that where guardians disagree, the court can settle the issue.

Gibbs v Gibbs: Not Every Medical Decision Needs Both Parents

In this Family Court case, a father asked the court to settle a dispute between guardians about medical testing for the children. The Judge considered that medical treatment is only a guardianship issue if it is not routine in nature. This shows why the distinction between routine and important decisions matters in practice.

Snider v Frazier: A Father Removed as Guardian

In this Family Court case, a mother applied to have the father removed as guardian. The father had left New Zealand a week before the child was born, taking two other children with him, and had not returned or shown interest in the child. The Judge removed him as guardian and made orders to prevent the child being taken out of New Zealand.

Norton v Ru: When Removal Is Refused

By contrast, in Norton v Ru, a mother who had moved to Auckland asked the court to remove the father as guardian, or alternatively to give a direction. The Judge found the threshold for unwillingness to perform guardianship duties had not been met, and that removal would not be in the children’s welfare and best interests.

Health New Zealand v Hill: When the Court Steps In

In 2025, in Health New Zealand | Te Whatu Ora, Te Toka Tumai Auckland v Hill, the High Court dealt with parents who had reservations about conventional medical treatment for their daughter. The court placed the girl under the guardianship of the Court until the earlier of completing her treatment or three years. This is an extreme example of the court exercising guardianship powers to protect a child.

What these cases tell us: there is no simple “sole custody” switch. Courts focus on the child’s welfare, are slow to remove a guardian, and prefer to resolve specific disputes rather than hand one parent total control. Where a parent is absent or unwilling, the outcome can be very different.

Practical Points for Parents

• Keep communication child-focused. Courts expect guardians to consult each other.
• Avoid unilateral decisions on important matters. Enrolling a child in a new school or starting non-routine treatment without agreement may harm your position.
• Keep records. Evidence of attempts to consult and agree can matter later.
• Seek advice early. The right strategy depends on the history, the child’s needs and your circumstances.

Speak to an Experienced Family Lawyer

If you are concerned about decision-making for your children after separation, or you want to understand your options under the Care of Children Act, you do not have to navigate this alone. As an experienced Auckland family lawyer, I can explain how guardianship and parenting orders apply to your situation and what is realistic.

Contact family law expert Naomi Cramer at Cramer Law to discuss your situation. Consultations are available by phone, email or Zoom.

The full text of the legislation is available on the New Zealand Legislation website: Care of Children Act 2004.

Disclaimer: This article is general information only and is not legal advice. It does not take into account your personal circumstances, and the law may change. The case summaries are brief and simplified. You should obtain independent legal advice before acting or relying on any information in this article. No lawyer-client relationship is created by reading this article.

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