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Family Law

How to Obtain Custody, Guardianship, or Access to a Child

custody guardianship access

Do you need to apply for guardianship or custody of a child, or access?

You can bring the application in the District Court where either party to the proceedings resides or carries on any profession, business or occupation.

Your hearing will be heard in private.

Guardianship applications and Court orders

An application to the Court  by the father of a child whose father and mother have not married each other and have not made a statutory declaration, for an order appointing him to be a guardian of the child shall be preceded by the completion by the applicant of a notice in the Form 58.1 Schedule C.

Such notice shall be served upon the mother and upon any other guardian of the child. The order of the Court granting such application shall be in the Form 58.2 Schedule C.

Applications to appoint or remove a guardian can also be made in other circumstances, for example where a child has no guardian or where a surviving guardian objects to the appointment of a testamentary guardian.

Application seeking Court’s direction

An application to the Court can be made for the court’s direction as to access, custody, or guardianship by a person who is a relative of a child, or has acted in loco parentis to a child and shall be preceded by the issue and service of a notice in the Form 58.15 Schedule C upon each guardian of the child. The order of the Court thereon shall be in the Form 58.16 Schedule C.

Application to vary/discharge

An application under section 12 of the Act for an order varying or discharging a previous order shall be preceded by the issue and service of a notice in the Form 58.21 Schedule C upon each of the other guardians or each of the guardians of the child as the case may be. The order of the Court thereon shall be in the Form 58.22 Schedule C.

Application for production of child

An application for the production of a child shall be preceded by the issue and service of a notice in the Form 58.23 Schedule C upon the person having custody of the child.

Custody/right of access -non compliance with direction

Where complaint is made to a Judge alleging an offence of failure or refusal to comply with the requirements of a direction given in an order the summons which may be issued and served upon the person against whom the offence is alleged shall be in the Form 58.28 or 58.29 Schedule C, as appropriate.

Service and lodgment of documents

Documents may be served upon the person to whom it is directed in accordance with the provisions of Order 10 of these Rules at least fourteen days or, in the case of proceedings certified as urgent under rule 2(2) hereof, at least two days, before the date of the sitting of the Court to which it is returnable.

The original of every such notice or order served shall, together with a statutory declaration as to service thereof, be lodged with the Clerk at least two days before the date of the said sitting.

Clerk to supply copies of orders

Where the Court makes an order under the Act, the Clerk shall give, or send by ordinary post, a copy of such order to each person in whose favour or against whom the order was made.

 

What’s set out above is an abbreviated version of the rules involved.

Always check the full version of the appropriate rules or get legal advice or representation.

Categories
Family Law

The Non Marital Family in Irish Law-What You Need to Know About Guardianship, Access, Custody, Maintenance

non-marital-family

The Irish Constitution envisages the ‘family’ as one based on marriage alone. Clearly this leads to huge difficulties for the many non-marital families in Ireland.

However it has been held that non marital children have the same ‘natural and imprescriptible rights’ as marital children under article 42 of the Constitution.

Unlike the rights of the family under article 41 of the Constitution, the rights of the non-marital mother to the custody and care of her child can be transferred or lost if she abdicates her rights and duties to the child.

However, the non-marital father has no such constitutional rights and has no natural rights to the custody of the child (unlike the non-marital mother).

Before the Status of Children Act, 1987 a  non-marital child was ‘illegitimate’ and could not be legitimated even if the parents married. The Status of Children Act, 1987 provides that the ‘illegitimate’ child becomes legitimate once the parents marry.

Guardianship

Prior to the Status of Children Act, 1987 the guardian of a non-marital child was the natural mother. After the passing of this act, a father can now apply to be made a joint guardian with the natural mother under section 12.

A father can also become a guardian under an informal procedure provided by the Children Act, 1997 provided the mother agrees. This involves a statutory declaration signed by both parties.

Guardianship means that a guardian must be consulted in relation to all aspects of the child’s upbringing.

All applications for guardianship will be considered in the light of the welfare of the child as set out in the Guardianship of Infants Act, 1964.

The non-marital father can apply to Court to become a guardian under section 6 A of the Guardianship of Infants Act, 1964.

However the Children Act, 1997 provides for a simpler way of the father becoming a guardian by way of a statutory declaration of both parents agreeing to the appointment of the father as a guardian. (S.I. No. 5/1998 — Guardianship of Children (Statutory Declaration) Regulations, 1998) This does away with the need to attend Court to be appointed a guardian.

Once the father has been appointed, he can only be removed by the Court.

Custody and Access

Custody is the date to day physical care and control of the child.

Access is the right to see and communicate with the child.

As outlined above, the natural mother has a constitutional right to the custody of the child but the natural father does not in a non-marital family.

However, the father can apply to Court for a custody and access order under the Guardianship of Infants Act, 1964, section 11(4).

The most common applications by fathers is for an access order but he may also seek custody where the child is not being looked after by the mother.

Maintenance

An unmarried man or woman has no legal entitlement to seek maintenance from the other party for him/herself. However, he/she can seek maintenance for the support of the children (Family Law (Maintenance of Spouses and Children) Act, 1976) (Learn more about maintenance orders)

The Status of Children Act, 1987 provides that a maintenance order cannot be made against a person unless it is proved on the balance of probabilities that the person is the parent.

The criteria that a court uses in determining how much maintenance is to be paid are set out here.

Succession

Since June, 1988, thanks to the Status of Children Act, 1987 children born outside of marriage have the same succession rights as marital children.

This means that a child born outside marriage can bring legal proceedings challenging a parent’s will if s/he is disappointed and can claim a share of the parent’s estate where there is no will.

It is strongly advisable for a single mother to make a will nominating guardians in the event of her death. If she doesn’t, the child will have no guardian.

The Status of Children Act, 1987 also provides for declarations of parentage. These types of declarations are important in probate cases. You can learn more about declarations of parentage here. Where parentage is in question, Courts can order the taking of blood tests or DNA tests.

The Status of Children Act, 1987 also introduced a presumption of paternity. This means that it is presumed that the father of a married woman’s children is her husband. However, this presumption can be rebutted with the appropriate evidence.

Provisions for the registration of births are set out in section 49 of the Status of Children Act, 1987.

The Domestic Violence Act, 1996 extended the protection of barring and protection orders to cohabitees. You can learn more about barring and protection orders here.

An unmarried person does not enjoy the protection of the Family Home Protection Act, 1976. Property disputes between an unmarried couple cannot be pursued within the family law Courts.

Cohabitation agreements and non-marital contracts are not recognised in Irish law as they are seen as contrary to public policy. However agreements regulating financial and property matters are enforceable as long as they are not conditional on the parties performing ‘marital duties’.

Categories
Family Law

Access,Custody and Guardianship in Ireland-What You Need to Know

custody-access-guardianship-ireland

The Guardianship of Infants act,1964 is the principal piece of legislation governing the issues of access, custody and guardianship in Ireland.

Any guardian of a child can apply to Court to seek an order concerning these issues and the Court will be primarily guided by what is in the best interests of the child. An unmarried natural father can bring an application under the Guardianship of Infants Act, 1964 regarding custody and/or access.

Who is the guardian of the child?

The natural mother is automatically a guardian under Irish law; the father is also automatically a guardian if he is married to the mother at the time of birth or becomes a guardian on subsequent marriage after the birth.

However the natural father of the child, who is not married to the mother at the birth of the child, can apply to become a guardian under the Guardianship of Infants act,1964. (He can also become a guardian with the joint guardian with the consent and co-operation of the mother).

It is important to note that the unmarried father has the right to apply to become a guardian but not the right to be a guardian automatically.

The welfare of the child

Any application to Court in respect of guardianship, access or custody will be considered be having a look at what is in the best interests of the child. This welfare of child concept is necessitated by the 1964 act and welfare is looked at under a number of headings such as

  • The moral welfare (conduct of the parents is relevant only insofar as it affects the welfare of the child)
  • Religious welfare
  • Intellectual welfare (includes educational needs of the child)
  • Physical
  • Social (the capacity of the child to mix with and become part of the society in which they will be brought up)
  • Emotional
  • Capacity of the parent to care for the child
  • Wishes of the child but this will depend ont the age and level of understanding of the child and a Court is under no obligation to agree to the demands of a child in this respect
  • Keeping siblings together
  • Keeping siblings with the marital father where the mother is deceased.

Where there is a conflict between the welfare of the child and other considerations, the welfare of the child takes precedence.

Guardianship of children

Guardianship in Irish law is recognised as the duties and rights of the parent to make decisions in relation to the child’s upbringing, specifically in relation to education, religion and general global care/rearing, and decisions which must be made during the child’s lifetime relating to general lifestyle and development. It includes a duty to maintain and properly care for the child.

Who can be a guardian?

The natural mother is automatically  a guardian of the child.

Whether the father is a guardian or not will depend on his relationship with the mother-if they are married he is automatically a guardian.

If they are not married he is not a guardian.

However he can become a guardian in two ways:

  1. he can apply to Court under section 6A of the Guardianship of Infants Act, 1964 to be made a guardian or
  2. a statutory declaration, with the mother’s agreement, in accordance with the Children Act, 1997 (Section 4)

The Guardianship of Infants Act, 1964 also allows the father and mother to appoint testamentary guardians by will or deed to act as guardians in their place after death.

A guardian then has rights to custody of the child, subject to any court order, will, or deed, and can act on behalf of the child in relation to property of the child, legal proceedings and so on.

Unmarried fathers

Unmarried fathers are excluded from being automatic guardians of the child, unlike the natural mother. The Guardianship of Infants Act, 1964 gives the unmarried father the right to apply to Court to be appointed a guardian. This application will be judged on the circumstances of the case and the welfare of the child.

Custody

Custody is the right of a parent to exercise day to day care and control (physical) of the child. The married parents are automatically joint guardians and custodians of the child.

In the unmarried family, the mother is automatically the child’s guardian and sole custodian.

An unmarried father can apply for custody under the Guardianship of Infants Act, 1964 (Section 11(4)), even if he is not a guardian at the time.

The Children Act, 1997 makes provision for the father and mother to be appointed joint custodians. However, the reality is that the more likely scenario will be that one parent will have sole custody, generally the mother, and the other parent will have access. (Strictly speaking, the right to access is a right of the child in accordance with the UN Convention n the Rights of the Child)

In situations where married parents separate and sole custody is awarded to one parent, this does not mean that the non custodial parent is deprived of other rights that accrue as a guardian. The non custodial parent must still be consulted in relation to all aspects of the child’s welfare.

Access

The law considers that the right to access to a parent is in fact a right of the child; this is why an access to a child order will be decided by the Court whilst looking at what is in the best interests of the child.

Generally though it is very unusual for a Court to not grant a parent access to their child and may, where necessary, make a supervised access order to allow to this to happen where the circumstances demand it.

The Children Act 1997 gives rights of relatives to apply for access to a child. This includes grandparents and the extended family of the child as well as those who have acted in loco parentis to the child.

Access orders are not final and can be varied/changed on application to Court.

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This is part of the Family Law in Ireland series.

I also have a website which deals with only family law in Ireland.