Issue:

27,2004

Page:

6-8

Abstract

Common sense for those going through separation

Keywords:

Separation, families

I thought that I was tough, or, at least, I thought I was supposed to be tough. I thought I was intelligent, and I thought I could cope with anything. And then, when our daughter was two years old, my wife and I separated.

Blimey. It turned out to be one of the hardest things I’ve ever had to deal with in my life. Life turned upside down. My stability vanished, and was replaced by pain, hurt, loneliness, and self-doubt, which lasted for days, weeks, months. Years even. My mood swung like a pendulum. One minute I felt good about the future; the next I was in despair. Nothing seemed clear any more, nothing made sense. I wanted it all to go away. I wanted to leave it all behind. I didn’t know what to do with myself. In the end, it didn’t matter who was to blame. It just was no fun at all.

The hardest thing for me was becoming a single dad. Just when I was at my most vulnerable, my daughter needed me to be at my strongest. I knew nothing about the law relating to separation, even though I was supposedly (in my own mind, at least) so competent.

I had many fears about what was going to happen to my daughter and me. I worried endlessly about what would become of us. Would I ever be able to deal with this? What would happen to my daughter? Would she be able to cope? Would someone take her away from me? Would someone else replace me? Was she going to get a new Dad? Wouldn’t I be needed anymore? Wouldn’t she want me anymore?

Lots of people said I should go back to the UK (from where I had emigrated a year previously) and start a new life. I was so upset and confused that I almost bolted. I am  glad I didn’t.

What happens when you separate ?

The following isn’t legal advice; it is only intended as a guide to give you a basic idea what the law says. There is no substitute for proper legal advice, and you should see a lawyer if you don’t understand something. I believe the law is fair to fathers as well as mothers, that it will look after you, that you have rights and that there is hope! You see, I’d have felt so much better about the whole thing, if I’d just had a basic idea of what the law said, and what my rights were.

In New Zealand it is common that, children stay with their mother in the immediate aftermath of separation, although this need not always be so. Nevertheless, many dads suddenly find that, whatever the reason for the separation, not only has their partner gone, but so have their kids.

 If there is ill feeling between Mum and Dad (and, lets face it, there seldom isn’t, at least in the early days of separation), it may even be difficult to maintain contact with your children. It’s not uncommon for the custodial parent to try to deny the other access, sometimes out of revenge, or sometimes because of wanting to ‘move on’.

But whatever the circumstances, it makes no difference to a dad who cares, who wants to play an active role in the lives of their children, and yet, suddenly, it’s all gone. They are faced with the awful prospect of not seeing the kids again, or being replaced by a new ‘dad’. It’s a heartbreaking and terrifying situation.

If you find yourself in this situation it’s important to realise that there is hope. There really is.

It is normal to be upset,  normal to be scared, and normal to be angry. But things will get better, become clearer and easier. You won’t always feel sad. Gradually, you will build a new life.

 Neither your ex-partner nor her new boyfriend, (nor her mum and dad who never liked you anyway) can take your kids away from you. The law does protect your children from this fate in any other than extreme circumstances. Don’t worry! You may not end up with full, exclusive custody of your children but, if you want it, you can secure shared custody, or at least regular access.

It may take a lot of commitment, but ultimately if anyone is stopping you from seeing your kids it is likely to be yourself.

Counselling

This is always a good idea. Going to a counsellor does not mean that you are weak, it means that you are sensible.

The Family Court can arrange a limited number of free counselling sessions for parents who have separated. When emotions are running high, it really, seriously, helps to take advantage of this. (Imagine a Canterbury v Auckland rugby match without a referee?)  Counsellors won’t take sides, they will just help you to sort out, fairly and sensibly, the initial difficulties of a separation, like who the children will predominantly live with, and when they are with the other parent. It’s a good idea.

The Law

Guardians

New Zealand law uses the word “guardianship” to describe the care of a child. A guardian is a person whom the law recognises as having the right of control and upbringing of a child. Guardians are responsible for clothing and feeding children, and sending them to school, etc.

Does Mum Have More Rights Than Dad?

It’s important to realise that there is no law that says that one parent is more important than the other. A mother does not have more rights than a father. If mum and dad are both guardians, then they both have the right, and responsibility, to care for their child. Where they are separated, neither the mother nor the father has the sole right to determine how their child is to be cared for. A child’s mother may not ignore dad’s involvement and, more to the point, may not prevent him from being involved, even if the child usually lives with mum.

Who is a Guardian?

A mother automatically becomes a guardian when her child is born. Dad, if he is living with mum at the time of the birth, also automatically becomes a guardian. Both will remain guardians if they separate.

 On the other hand, if dad wasn’t living with Mum when the child was born, then he isn’t automatically a guardian. But he can apply to the Family Court to be appointed as a guardian. In other words, even if you split up with you partner before your child is born, you can still be an active dad, if you want.

Custody and Access

Usually, the kids will live with one parent (custody), and the other parent gets to see them regularly (access). It needn’t necessarily be the mum who has custody.

Even where there is ill feeling between them, separated parents are usually able to agree between themselves how they are going to share the care of their child. It is definitely best to try to reach an agreement.

Sometimes their child may live them for a week each alternately (shared custody).

Lots of different factors may affect the situation; the parents may live in different towns, or one of them might be a shift-worker, for example. There are no hard and fast rules, as long as the arrangement is satisfactory for mum and dad and, above all, for the kids.

Sometimes parents can’t agree on how to share their kids. In those situations, the Family Court will decide. The important thing to remember is that, unless there are issues of violence or abuse (if there are then you should consult a lawyer as soon as possible), neither Mum nor Dad can prevent each other from seeing the kids.

Going Abroad

No, your ex can’t move to the Gold Coast,  and take the kids with her, unless you agree to it. You can apply to the Family Court for an order preventing them from being taken out of New Zealand. And, if they are taken overseas without you knowing about it, it should be possible to have them returned to New Zealand under the Hague Convention.

What To Do if You Need Advice

Try not to panic. Remember - You Have Rights. Don’t be intimidated by the law. Lawyers are there to provide a service to you, just like car salesmen, hairdressers, and ice cream vendors. You can choose which lawyer you go to, you can tell them what you want them to do, you can ask them to do things differently, and you can ask them why they have done something. There is a Law Society complaints procedure if you aren’t happy with your lawyer. Also, don’t worry too much about the cost of it all. It’s possible to obtain legal advice, and representation, without it costing the Earth.

Many large cities and towns in New Zealand have Community Law Centres, which will usually be able to provide you with free initial legal advice, and will point you in the right direction if you think you might need help with arranging custody of or access to your kids. Community Law Centres exist to help people who are unsure about the law, or may not be able to afford a private lawyer, so don’t be afraid to use them. They are there for you.

In addition, there are many private law firms that specialize in Family Law. Don’t be afraid to ring them. They are in the Yellow Pages. Law is a competitive world, and they want your business. Don’t worry about the stereotype lawyer. They are just people, and most of them are hardworking, honest and decent. Yes there are some bad ones. There are some bad hairdressers too, if you get my drift. Lawyers aren’t predisposed to dishonesty, anymore than you are. If you are worried about the cost, then say so. Tell them that you do not wish them to do any work which will cost you, without firstly telling you what it is and how much it will cost. Ask them to itemise your bill.

If you have a low income, you might find that you are eligible for legal aid. This means that you would receive financial assistance, from the Legal Services Agency, towards paying any costs that you might incur in applying to the Family Court. Your lawyer should be able to advise you whether you are likely to be able to receive legal aid, and should be able to help you fill out an application.

 A Suggestion

Yes, it’s very normal and human to feel angry, bitter, and unhelpful towards an ex-partner. If you are committed to your kids, then you will nearly always have to deal, to a greater or lesser extent, with your ex. In my experience, sometimes it goes smoothly, and sometimes it doesn’t. Sometimes the two of you co-operate well, and other times you don’t. (It’s almost like you’re still married!).

The point is, it’s always best to co-operate as best you can. By all means, stand up for what you think is fair and right for you and, most importantly, the children, but don’t fight for the sake of fighting. Kids much prefer their parents, even if separated, to be friends. It upsets them, and is damaging to them, if you fight. It’s also damaging to you. And, the more you fight, the more work your lawyer will have to do for you, the longer it will be before you achieve an outcome, the less satisfactory to you the outcome is likely to be, and the more it will cost you. You can stand up for yourself, but you can’t have everything your own way. Do what is best for the kids - compromise!

Don’t Give Up!

Yep, five long, difficult years have passed since my separation. An awful lot has happened in that time. To begin with, my daughter lived with her Mum. For a while, I lived overseas, and kept contact with phone calls, presents, and cards. In the end, I came back to New Zealand, because I missed her and, above all, because she needs her Dad. Now, her Mum and I share her custody 50 - 50.

The point is, things have changed, and things will keep changing. That’s life. Just don’t give up on your kids.

Lucy was two when we split, and says she can’t remember what happened. Now she’s seven, and spends her time playing, laughing, reading, and jumping on me at six o’clock in the morning. She loves me, and I love her. I’m so glad I hung in there. There is nothing better than the feeling you get when you are watching your child performing at a school play or something, and she spots you in the audience, and her little face lights up! Yes, separation is hard to deal with but, if it happens to you, don’t panic, it will work out fine!