He taonga to mokopuna, kia whāngaia, kia tipu, kia rea - a child is a treasure, to be nurtured, to grow, to flourish. 

A common thing we hear from clients is "I want custody of my children."

While most people understand what "custody" means, the reality is that custody is no longer a legal term used in New Zealand family law. In fact, the term was removed from our legislation more than 20 years ago.

So, what changed?

The Care of Children Act 2004 replaced the old concepts of "custody" and "access" with language that focuses more directly on children's needs and parental responsibilities.

Instead of talking about custody, the Family Court now talks about:

• Day-to-day care (who the child lives with and who looks after them on a daily basis); and
• Contact (the time a child spends with a parent or other important person when they are not in that person's care).

The change was intentional. The law moved away from language that can sound like a child is something to be "owned" or "won" by one parent.

What does "day-to-day care" mean?

Day-to-day care refers to the practical care of a child, including:

• Where the child lives;
• Their daily routine;
• School attendance;
• Meals, bedtime, and general supervision; and
• The everyday decisions involved in raising them.

A parent can have:

• Sole day-to-day care; or
• Shared day-to-day care arrangements.

There is no legal presumption that one parent should have day-to-day care over the other. The Court's focus is always on what is in the child's welfare and best interests.

What about "contact"?

What many people previously called "access" is now referred to as contact.

Contact can take many forms, including:

• Weekend visits;
• School holiday time;
• Telephone calls;
• Video calls;
• Supervised contact; or
• Other arrangements that allow a child to maintain a relationship with an important person.

The Court recognises that children generally benefit from having ongoing relationships with both parents, provided doing so is safe and in their best interests.

Does this mean I can't say "custody"?

Not at all. Many people still use terms like "custody," "shared custody," and "access" in everyday conversation, and most lawyers will understand exactly what you mean.

However, if you're involved in Family Court proceedings, you'll hear terms such as:

•  Day-to-day care
•  Contact
• Guardianship
• Parenting orders

These are the legal concepts that will appear in Court documents and orders.

Why does the language matter?

The shift away from "custody" reflects a broader change in how New Zealand family law views parenting after separation.

Rather than focusing on which parent "gets" the child, the law focuses on:

• The child's welfare and best interests;
• Maintaining important relationships;
• Encouraging parents to work together where possible; and
• Ensuring children are protected from harm.

Ultimately, Family Court decisions are not about determining a "winner" and a "loser." They are about creating arrangements that best support the child's wellbeing. 

As family lawyers, we offer advice, guidance and representation in family law matters, if you would like assistance or to talk to someone, contact us today.

Written by:

Eva Leutele