Guardianship & Custody, October 2008

Question: I am the father of a 7 year old child.  I am not married to my ex partner and I am not exactly sure what legal rights I have concerning my son.  I have been told that I have to apply through the Courts for rights.  I am worried that I might be excluded from all decisions concerning his life.

Answer:

It is important to distinguish the difference between guardianship rights and child custody.  The essential difference is:

• Guardianship is the legal relationship that exists between parents and their children and describes the legal rights and responsibilities automatically vested with the parents of a child born within marriage and with the mother of the child born outside marriage in relation to the child’s upbringing.
• Custody relates to the physical day to day care for the child or the children and is one aspect of the wider concept of guardianship.

If a child in Ireland is born outside of marriage, the mother is the sole guardian.   The position of an unmarried father of the child is not so certain.  If the mother agrees, the father can become a joint guardian if both parents sign a statutory declaration.

This declaration must be signed in the presence of a peace commissioner or a commissioner for oaths.   If there is more than one child, a separate statutory declaration should be made for each.  The problems arise when the mother does not agree to sign the statutory declaration or agrees that the father be appointed as the child’s guardian by the courts.  In such an eventuality the father can apply to the Court to be appointed as a joint guardian and the application can be made to the District Court and can be made even if the father’s name is not on the child’s birth certificate as long as the Judge is satisfied as to the parentage of the child.

If the mother objects to the application, while her views are taken into the account, it does not mean that the Court will refuse the Order sought by the father.  The overriding consideration for the Court will be what is in the best interest of the child.  If the father is appointed as guardian he must be consulted regarding all decisions to be taken about the child’s health, wellbeing and education.

If there is a dispute regarding access again a simple application can be brought before The District Court which will regulate what access parents should enjoy to their children. When guardianship rights are granted by the Court they can however be removed by the same court if the Court is satisfied that it is in the child’s best interest to do so.   They cannot however be removed from the mother unless the child is placed for adoption.    It is somewhat discriminatory in that parents of an infant who are married to each other are automatically guardians of their children.

More and more applications are being brought to the District Court as a matter of course by unmarried fathers to ensure that they have equal rights with mothers who are automatic guardians under Irish Law.