Rochelle Crossman, Family Law Barrister - Family law advice

Shared parenting during the Covid-19 lockdown

29/5/2020

26 March 2020

If you are a separated parent who shares care of your children with the other parent (or where one parent is entitled to contact with the children), how does the Covid-19 lockdown affect you?

The Principal Family Court Judge has issued guidelines as follows:

The overriding consideration is for parents to make decisions that are in the best interests of their children, while at the same time, remembering the reason for this lockdown: to stop the spread of Covid-19.

The statement gives advice on when a shared care arrangement should be continued and when a child should stay in one place. In summary:

Generally, children in the same communities can continue to go between their homes, unless:
o the child is unwell. In this case the child should not travel between homes until they are well.
o someone in either home is unwell.
o someone involved (i.e. the child or people in the home they have been in or will go to) has been overseas in the last 14 days, OR has been in close contact with someone who is currently being tested for Covid-19 OR has been in close contact with someone who has the virus or is being tested.)

The Family Law Section recommends that the transporting parent carries a copy of the parenting order or parenting agreement with them in the car, in case the police ask you where you are going. Access to an email confirming your arrangements should suffice.

Parents and caregivers should discuss if shared custody arrangements would allow COVID-19 to potentially spread without them being aware and reach an agreement. This may mean the child may stay with one parent/caregiver for the initial 4 week period.

In more complex shared care arrangements, i.e. where day-to-day care is shared between more than two parents, or where one parent lives outside of the same town/city, the child should stay where they are for the four week period.

If your family forms part of a “chain” of households, for example, your children go to their dad’s, and his step-children go to their dad’s, and your step-children go to their mum’s, you need to think carefully about how big that bubble is getting – can you contain the virus? Possibly not. Perhaps someone needs to make a sacrifice so that the chain link is broken and the bubble doesn’t get too big.

If children aren’t able to physically visit a parent, the stay-at-home parent must aside their conflict and be generous with contact via skype/facetime/phone so that the child feels loved and cared for by both parents through this difficult time.

If you having difficulty making arrangements, email me and I will get back to you.

Guidelines for Parents Who Are Sharing Care of Children During the COVID19 Pandemic

27/3/2020

Thanks to the American Academy of Matrimonial Lawyers (AAML) and AFCC for these guidelines for coparenting during the COVID-19 pandemic, which I have adapted slightly for the NZ context:

1. BE HEALTHY.

Comply with government guidelines and model good behaviour for your children with intensive hand washing, wiping down surfaces and other objects that are frequently touched, and maintaining social distancing. During the lockdown STAY AT HOME. This also means BE INFORMED. Stay in touch with the most reliable media sources and avoid the rumor mill on social media.

2. BE MINDFUL.

Be honest about the seriousness of the pandemic but maintain a calm attitude and convey to your children your belief that everything will return to normal in time. Avoid making careless comments in front of the children and exposing them to endless media coverage intended for adults. Don’t leave the news on 24/7, for instance. But, at the same time, encourage your children to ask questions and express their concerns and answer them truthfully at a level that is age-appropriate.

3. BE COMPLIANT with court orders and parenting agreements.

As much as possible, try to avoid reinventing the wheel despite the unusual circumstances. The care agreement or court order exists to prevent endless haggling over the details of shared care.

4. BE CREATIVE.

At the same time, it would be foolish to expect that nothing will change when people are in lockdown. In addition, some parents will have to work extra hours to help deal with the crisis and other parents may be out of work or working reduced hours for a time. Plans will inevitably have to change. Encourage closeness with the parent who is not going to see the child through shared books, movies, games and FaceTime or Skype.

5. BE TRANSPARENT.

Provide honest information to your co-parent about any suspected or confirmed exposure to the virus, and try to agree on what steps each of you will take to protect the child from exposure. Certainly both parents should be informed at once if the child is exhibiting any possible symptoms of the virus.

6. BE GENEROUS.

Try to provide makeup time to the parent who missed out, if at all possible. Family law judges expect reasonable accommodations when they can be made and will take seriously concerns raised in later filings about parents who are inflexible in highly unusual circumstances.

7. BE UNDERSTANDING.

There is no doubt that the pandemic will pose an economic hardship and lead to lost earnings for many, many parents, both those who are paying child support and those who are receiving child support. The parent who is paying should try to provide something, even if it can’t be the full amount. The parent who is receiving payments should try to be accommodating under these challenging and temporary circumstances.

Adversity can become an opportunity for parents to come together and focus on what is best for the child. For many children, the strange days of the pandemic will leave vivid memories. It’s important for every child to know and remember that both parents did everything they could to explain what was happening and to keep their child safe.

Shared parenting during the Covid-19 lockdown

27/3/2020

If you are a separated parent who shares care of your children with the other parent (or where one parent is entitled to contact with the children), how does the Covid-19 lockdown affect you?

The Principal Family Court Judge has issued guidelines as follows:

The overriding consideration is for parents to make decisions that are in the best interests of their children, while at the same time, remembering the reason for this lockdown: to stop the spread of covid-19.

The statement gives advice on when a shared care arrangement should be continued and when a child should stay in one place. In summary:

Generally, children in the same communities can continue to go between their homes, unless:
o the child is unwell. In this case the child should not travel between homes until they are well.
o someone in either home is unwell.
o someone involved (i.e. the child or people in the home they have been in or will go to) has been overseas in the last 14 days, OR has been in close contact with someone who is currently being tested for Covid-19 OR has been in close contact with someone who has the virus or is being tested.

The Family Law Section recommends that the transporting parent carries a copy of the parenting order or parenting agreement with them in the car, in case the police ask you where you are going. Access to an email confirming your arrangements should suffice.

Parents and caregivers should discuss if shared custody arrangements would allow COVID-19 to potentially spread without them being aware and reach an agreement. This may mean the child may stay with one parent/caregiver for the initial 4 week period.

In more complex shared care arrangements, i.e. where day-to-day care is shared between more than two parents, or where one parent lives outside of the same town/city, the child should stay where they are for the four week period.

If your family forms part of a “chain” of households, for example, your children go to their dad’s, and his step-children go to their dad’s, and your step-children go to their mum’s, you need to think carefully about how big that bubble is getting – can you contain the virus? Possibly not. Perhaps someone needs to make a sacrifice so that the chain link is broken and the bubble doesn’t get too big.

If children aren’t able to physically visit a parent, the stay-at-home parent must aside their conflict and be generous with contact via skype/facetime/phone so that the child feels loved and cared for by both parents through this difficult time.

If you having difficulty making arrangements, email me and I will get back to you.

Unbundled Advice

9/4/2018

More and more people are seeking "Unbundled Legal Advice" for matters in the Family Court. This is where you represent yourself in the proceedings, but you get some legal advice from a lawyer about a particular aspect of your case.

The "Family Legal Advice Service" is an example of unbundled legal advice that the government funds. Other than that, you will need to pay for unbundled legal services.

The University of Otago Legal Issues Centre has released an informative video explaining what unbundled advice is, and when you might choose to use it. You can find the video on YouTube. Unbundled advice is also known as limited retainer advice.

In the Family Court, you might choose to represent yourself, but get some unbundled legal advice:
- When the proceedings are beginning, to talk through what your overall strategy should be, and to have an expert point out the strengths and weaknesses of your case;
- Prior to a settlement conference or hearing, to go over Court rules and strategies;
- If something unexpected arises in your case and you are not sure how to respond.

Provided you come to the appointment with a clear understanding of how you got to where you are, and with all the relevant documents to hand, you should be able to get a lot of advice in an hour-long appointment. Be sure to explain to the lawyer when you are making the appointment, that you are seeking unbundled advice, so that the lawyer understands this from the beginning. Not all lawyers will be prepared to give unbundled advice. It is a rather "new" way of working and some lawyers won't be used to it.

I am happy to provide unbundled legal advice services although I am likely to ask you to pay a retainer in advance of our appointment, as, sadly, clients who do not intend to establish a traditional lawyer-client relationship, have been known to collect legal advice and then refuse to pay for it.

Call me any time to discuss if you think unbundled advice is what you need.

Paternity / DNA testing - how its done

1/7/2016

An earlier blog covered the situations when a paternity test might be required. This blog will discuss the practicalities of having the test done.

If you and the other party are in agreement, you can arrange and pay for a test yourselves. There is no need in that situation to make an application to the Family Court. You should however consider taking legal advice.

Typically after the application is made to the Family Court, the Court issues a recommendation that DNA testing is done. It is then up to the mother and the putative (possible) father to arrange for a sample of their DNA to be collected.

Generally, the mother takes the child to an approved laboratory, with photo ID for the mother, and a printed photograph of each of them. A blood sample is taken from the adult, and a cheek swab from the child. The photos are kept on file as proof of the person from whom the sample was taken. The father will also attend the laboratory (not at the same time), with photo ID and a photo of himself.

In Court proceedings, identification is a very important part of the process, so that the testing laboratory can conclusively report whether or not the alleged father is indeed the father. There is a clear "chain of custody" so there can be no doubt whose samples were taken.

The only laboratory who does this Court-approved testing in New Zealand is DNA Diagnostics. Their website has useful information about the testing process, and cost.

In Dunedin, the laboratory that takes the samples is Southern Community Laboratories at 95 Hanover Street. You will need to make an appointment first.

If a mother or father is eligible for legal aid, the costs of the test are usually covered by the legal aid grant. It may of course have to be paid back, but that is at an affordable rate.

If the test is not required for Court, then you could look into the various online companies who offer DNA testing. This could be appropriate if the mother and putative father get on well, can cooperate to send the samples away and can be trusted to accept the results once they are in. But if there are any doubts about the other parent’s ability to maturely and calmly accept the results of the test, a Family Court application is likely to be the best option. Contact a specialist family lawyer to discuss your options and the best way forward.

The BEST family lawyer in Dunedin

14/6/2016

When you're dealing with stressful issues concerning your family and property, of course you want to hire the BEST lawyer in town to represent your interests and fight for your corner. And so you should! But many clients are surprised when to learn that this doesn't mean they should hope their ex has the worst lawyer. Not at all. If your ex has a "bad" lawyer, such as one who doesn't know the law, who pursues un-winnable arguments, is unnecessarily aggressive or adversarial or even one who just never gets back to your ex, it will end up costing you - in frustration, time and money.

So, not only do you want to have an specialist family lawyer yourself, in most cases you'll find that your lawyer can achieve a more favourable outcome if your ex also has an experienced family lawyer acting for them. Unfortunately though, you will rarely be able to have a say about who your ex's lawyer is.

The upshot? By all means hire the best specialist family lawyer in town, but don't be too worried if your ex hires the second-best!

Family mediation

26/5/2016

On 31 March 2014 the new Family Justice System began. This was the biggest change to the Family Court system in New Zealand since the Family Court was set up in the 1980s.

According to the Ministry of Justice, the new system will enable more separated parents to reach agreement about their children's care arrangements without the need for Court action or lawyers.

The Ministry's website about the system can be found here.

While the goal of enabling parents to reach their own agreements about their children's care is an admirable one, you should still obtain some legal advice as to your rights and responsibilities as a parent or guardian. This will ensure that the decisions you reach are the most appropriate for your children and that your important role as your children's parent and guardian is recognised.

Low income clients are likely to be eligible for free legal advice about the new system under the Family Legal Advice Service. Look for a Family Law specialist who can offer this service in Dunedin.

For urgent matters where a child's safety is at risk and/or where there has been domestic violence, clients are still able to make an application to the Family Court and to access legal aid (if otherwise eligible).

Note that the new Family Justice System does not affect other applications to the Court such as Domestic Violence, Relationship Property, Paternity or Adoption. It is recommended you obtain legal advice before embarking on Court action in respect of any of these matters.

Why would you need a specialist Family Lawyer?

9/5/2016

If you've just separated, you will be feeling anxious and worried about the care arrangements for your children. You may be concerned about the financial and property implications arising from your separation. You may have been separated for quite some time, but care arrangements are no longer working as well as they were.

Grandparents, caregivers and adoptive parents have other issues they want to resolve as quickly and efficiently as possible. Perhaps you have been stuck in an abusive relationship that you can't see the way out of, or CYF have been knocking at your door.

If your problem involves any aspect of Family Law, you need an experienced, specialist Family Lawyer. Don't be tempted to hire the lawyer who did your conveyancing or set up your business; they will be specialised in those areas and are unlikely to have the expertise that you will need to guide you, successfully, through the Family Law minefield.

Paternity / DNA testing

29/4/2016

Sometimes it is necessary to carry out paternity testing on a child. Common cases include where the mother cannot be sure who is the father of her child, where a man is not convinced he is the father of a child, or where a mother knows who the father of her child is, but he refuses to acknowledge that.

This can be a very real issue for the child, who may grow up not knowing who his or her father is. Studies show that a child is likely to have better outcomes in life if they know who their parents are. Growing up not knowing who your father is will have a significant impact on a person's life. Just watch "Missing Pieces" or "Lost & Found" on TV if you need proof!

A more immediate issue can arise when a father is not named on the birth certificate, and will not acknowledge paternity in writing. In that case a mother receiving a sole parent benefit will have her benefit reduced until she is able to conclusively name the father. This is so that the father can then be required to support his child by paying child support. Typically the sole parent benefit is reduced by over $20 a week.

Back in the day all sorts of lurid information was required to prove a paternity claim. These days almost all applications are resolved by DNA testing. The Court can recommend DNA testing is done, although it cannot require it, and no person can be compelled to undergo a DNA test if they do not want to.

If a putative (possible) father refuses to take a DNA test, the Court can draw an inference from that. That is, the Court can assume that the man is refusing to take the test because he knows very well that he is the father, but he doesn't want it to be proven. In that case the mother will need to provide corroborating evidence as well, but it is quite possible for the Court to make a paternity order even without DNA testing.

The application is a relatively straightforward one for an experienced family lawyer to prepare, but there are a number of pitfalls for a person trying to make the application on their own. It is recommended that you consult a specialist family lawyer if you need to make, or respond to, an application for a paternity order.

Representing yourself in the Family Court

21/3/2016

More and more people are finding themselves having to consider acting for themselves in the Family Court. This could be because a "simple" application under the Care of Children Act must be filed by the litigant themselves, and not a lawyer. Or it could be because while a litigant is ineligible for legal aid, they cannot pay thousands of dollars for a lawyer.

Acting for yourself is always risky. Quite apart from the difficulties in understanding the law and Court process, you are unlikely to challenge your own position or "think outside the box" about other possible solutions.

A big part of a good lawyer's job is reality checking their clients' positions, to ensure that what they are asking for has at least a chance of being awarded by the Court. If you are acting for yourself with no advice, you will miss this vital step.

One option if you can't afford to engage a lawyer for the entire proceedings, is to seek advice at various steps and for specific jobs only. For example, you could meet with an expert family lawyer before filing an application, to get some advice about what to include (and what not to include). Then you might use the lawyer again only when the settlement conference occurs.

While traditionally lawyers work under a "full service retainer", carrying out every aspect relating to the proceedings, some are happy to work on a limited retainer, as described above. This is also known as "unbundled assistance" and more progressive lawyers are moving towards offering that service.

If you feel that you want to represent yourself, but you are wise enough to know that you don't know everything, I suggest finding a lawyer who can offer an unbundled service that fits your needs specifically.