Family Law

Guardianship and new rights for cohabiting couples and unmarried fathers and same sex couples

What is Guardianship ?

A guardian of a child in Ireland has a duty to maintain and properly care for the child and has rights to make decisions about the child’s religious and secular education, health requirements and general welfare.

Who has Automatic Guardianship ?

Married parents of a child are joint guardians and have equal rights in relation to the child. The rights of parents to guardianship are set down in Section 6 of the Guardianship of Infants Act, 1964.

Unmarried Couples Automatic Guardianship:

For children born outside of marriage, only the mother has automatic rights to guardianship.

Under the Children and Family Relationships Act 2015, unmarried fathers are entitled to automatic guardianship where:

  • if he has lived with the child’s mother for 12 consecutive months after the 18th January 2016, including at least 3 months with the mother and child following the child’s birth. If there is a disagreement as to whether they have been cohabiting for the time mentioned, an application can be made to court for a necessary declaration in the District Court or Circuit Court.
  • where civil partners or a cohabiting couple have jointly adopted a child under an adoption order the civil partners or cohabiting couple shall be guardians of the child jointly.

What happens where the mother does not consent to the father being appointed a guardian ?

The father must apply to the court to be appointed as a joint-guardian. Contact a solicitor and apply directly to the District Court (This is possible, irrespective of whether your name is on the child’s birth certificate or not).

The Court will take into account the following:

  1. The benefit to the child of having a meaningful relationship with his/her parents/relatives/other persons.
  2. The views of the child ( where possible)
  3. The physical, psychological and emotional needs of the child and the effect a change in circumstances will have on that child.
  4. The child’s social needs.
  5. The child’s age and special circumstances.
  6. Any harm which the child has suffered or at risk of suffering.
  7. The willingness and ability of each child’s parents to facilitate a relationship with others.
  8. The capacity of each person to care for the child.
  9. If there is domestic violence within the home, the court must give special consideration to same.
  10. The conduct of the parents may be considered in a limited context where it is relevant to the child’s welfare and best interests.

The fact that the mother does not consent does not mean an application for guardianship will be refused. The overriding principal is the best interests of the child.

Stepfathers, Civil Partners and Cohabitants and Guardianship

  • A step-parent, a civil partner or a person who has cohabited with a parent for not less than 3 years may apply to the court to become a guardian where they have co parented the child for more than 2 years.
  • A person who has provided for the child’s day-to-day care for a continuous period of more than a year may apply for guardianship if the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship.

Temporary Guardian

A parent can nominate a temporary guardian who can be appointed by the court if the parent is suffering from a serious illness or injury which prevents them from exercising their guardianship responsibilities in respect of their child.

If the court appoints a guardian to a child where one or both parents are alive, the guardian will not generally have the right to make certain major decisions about the child unless that right is expressly granted by the court.

Removal of Guardianship rights

Fathers and others who have been appointed joint guardians by a court or by statutory declaration can be removed from their position if the court is satisfied it is in the child’s best interest. The only way a mother can give up her guardianship rights in Ireland, is if the child is placed for adoption.

Same-Sex Couples

The issue of guardianship may arise if one of you has a child. You may have guardianship rights in relation to your child and you may wish your same-sex partner to also have guardianship rights. It is possible for your partner to apply to become a guardian of the child.

Guardians and making a will, appointing a Guardian

It’s very important if you are the guardian of a child (especially if you are a mother and sole guardian) that you make a will, appointing a guardian to act on your behalf in the event of your death. It’s strongly advised that you talk this over with someone who could act as guardian and that he/she gives his/her consent to being named in your will as testamentary guardian.The child’s surviving guardian (if there is one) will then act jointly with the new guardian.

If you have any queries in relation to any aspect of family law you can submit them through our contact form. Alternatively if you would like to arrange an appointment or request a call back you can do so through the contact form.

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