Story: Divorce and separation

Page 5. Children and divorce

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Fathers’ rights in the 19th century

In the mid-19th century a father owned his children. His legal rights were extensive: he could appoint a guardian and decide where a child lived and with whom. A mother’s agreement was not necessary. But in many cases of marriage failure, care and control of the children was not an issue: when deserting the family, fathers went alone.

The child’s welfare

Legislation was mainly concerned with the welfare of the child from 1887. The Infants Guardianship and Contracts Act 1887 listed three factors judges were to consider when awarding custody:

  • welfare of the child
  • parents’ behaviour
  • parents’ wishes.

The act also removed the presumption of the father’s right to custody. In 1908 this was reinforced when the Infants Act 1908 gave mothers guardianship rights.

Welfare meant not only physical wellbeing, but the spiritual and moral atmosphere in which a child was living. Concern for the child’s moral and spiritual welfare, combined with the legal need for one of the parents to be blamed for divorce, meant that the guilty party was almost never awarded custody.

Mother principle

From the early 20th century the idea that young children, particularly girls, were better off with their mother also influenced custody decisions. This ‘mother principle’ could be overturned if the mother was the guilty party in a divorce. If the mother had committed adultery, she was sometimes denied access to her children.

The Family Court

From 1981 the Family Court heard virtually all custody and access cases.

When divorcing, couples with children under the age of 16 had to satisfy the court that arrangements for the children’s day-to-day care and financial maintenance had been made. Most divorcing or separating couples arranged custody and access without needing to go to court. When satisfactory arrangements had not been made, the court could make parenting orders spelling out day-to-day responsibilities and parents’ contact with the child.

At first custody applications made by those who had been in de facto relationships were less than half the number made by those who were divorcing. As de facto relationships became commonplace, the number of custody disputes between unmarried couples rose. By 1990 the rates were almost the same.

Complaints about the Family Court

Custody of children can cause ferocious dispute. From the 1970s on, some fathers argued that the Family Court favoured mothers. The issue led to the formation of fathers’ rights groups, which have campaigned for more equal sharing of custody and access.

Care of Children Act 2004

The Care of Children Act 2004, which came into force in 2005, aimed to:

  • ensure children’s views were taken into account
  • encourage cooperative parenting
  • recognise the variety of family arrangements
  • create more openness about Family Court processes
  • give the Family Court more ways of dealing with breaches of court orders, including fines, the payment of bonds, and imprisonment.

The wellbeing of children was the paramount consideration. This included supporting their relationships with family members and protecting them. Parental responsibilities rather than rights were emphasised.

The terms ‘custody’ and ‘access’ were replaced by ‘day-to-day care’ and ‘contact’.

How to cite this page:

Megan Cook, 'Divorce and separation - Children and divorce', Te Ara - the Encyclopedia of New Zealand, http://www.TeAra.govt.nz/en/divorce-and-separation/page-5 (accessed 29 May 2020)

Story by Megan Cook, published 5 May 2011, reviewed & revised 8 Nov 2018