Previous Page

Entry of the father’s name in the Register of Births does not give him any guardianship rights in respect of his child.

How a father can become a guardian

Where both parents are in agreement about the father becoming a guardian then both parents can complete a statutory declaration to this effect in the presence of a peace commissioner, commissioner for oaths or notary public. The Statutory Instrument S.I. No 5 of 1998, which is required, is available from Government Publications or the National Information Centre of TREOIR.

Where the mother is not in agreement with the father becoming a guardian then the father can apply to the District Court to become a joint guardian with the mother of his child, whether or not his name is entered in the Register of Births. Applications may be made for guardianship, under the guardianship of infants Act 1964, to the Family Law Office in Dublin or the Local District Court. It is possible to institute, these proceedings yourself contacting the clerk of the court (if outside Dublin), or the Family Law Office of the District Court in Dublin.

While the mother’s views are taken into account by the court in making a decision, the fact that she does not consent does not automatically mean that the court will refuse the order sought by the father. The decision of the court will be made with the interest of the child being the first and paramount consideration.

Where joint guardians cannot reach an agreement on an issue concerning the child then an application can be made to the court for a decision and the court will make a decision in the child’s best interest.

A father who has been appointed joint guardian by a court or by statutory declaration may be removed from his position as joint guardian if the court is satisfied that this is in the best interest of the child. The only way a mother can give up her guardianship rights is by placing her child for adoption.

Marriage following the birth

Should the parents of a child marry each other following the birth of their child, then the father automatically becomes a joint guardian with the mother as long as the child has not been adopted. There is therefore no need to apply to the court for guardianship rights nor is there any need to adopt the child. See page 44 for further information.

Where a father is a joint guardian and the mother marries another man, the father remains a joint guardian of the child. Should the mother and her husband wish to adopt the child and the father has been appointed a joint guardian, then his consent to the adoption is required and he relinquishes his own guardianship rights should the adoption be completed. See page 44.

Guardians and wills

All parents who are guardians but especially mothers who are sole guardians, should make a will appointing a guardian to act on their behalf in the event of their death. It is advisable to talk it over with someone who could and would like to act as guardian and get her/his consent to be named in the will as a testamentary guardian. Where no guardian has been appointed by a deceased parent or if a guardian so appointed dies or refuses to act, the court may appoint a guardian or guardians to act jointly with the surviving parent.

Think it through

While both parents should be encouraged to be fully responsible for and involved with their children, applying for joint guardianship is a serious commitment and should therefore be given much thought before any application is made. Difficulties may arise if parents lose touch with each other in later years. Some legal forms e.g. passport applications, require a signature of both guardians.

CUSTODY

The mother of a child born outside marriage has sole custody of her child. This means that the mother is responsible for the child’s day-to-day care.

The father of a child born outside marriage may apply to the court for sole or joint custody of his child regardless of whether or not he has applied to become or was appointed joint guardian.

As with any court application involving a child, the child’s welfare will be the first and paramount consideration in deciding whether to grant sole or joint custody to the father. Where both parents agree it is possible for them to share custody of a child on an informal basis.

CHILD ABDUCTION

Under the Non-Fatal Offences against the Person Act, 1997 it is an offence for a parent, guardian or person to whom custody of the child has been granted, to take or send a child under 16 years out of the state without the consent of the other parent/guardian/custodian, or in defiance of a court order.

It is an offence for a parent who is not a guardian or custodian of the child to detain or remove a child under 16 years from the lawful control of any person who has lawful control of the child.

ACCESS

Where one parent has full custody of a child the question of access by the other parent may arise.

In some situations it may be possible to come to an informal arrangement whereby the non-residential parent may have access to his / her child on a regular basis without having to go to court even where the parent is not a joint guardian.

If you are having difficulty in making an arrangement regarding access that is satisfactory to both of you, and you do not wish to go to court, the National Information Centre of Treoir can put you in touch with a mediator who may be able to help you come to an agreement.

Where agreement cannot be reached an application may be made to the district court for an access order. Should the court decide that access by the non-residential parent is in the child’s best interest, the court may set the time, place and duration of access.

Access may be applied for whether or not the father’s name is in the Register of Births, whether or not he is a joint guardian and even where an application for joint guardianship has been turned down.

Again, as with cases involving children, any decision made by the court will be made in the best interest of the child.

Where both guardianship and access are being applied for then separate applications must be made though both applications will be heard at the same hearing.

Under the children Act 1997 any person related to the child by blood or adoption or who has acted in loco parentis may apply to the court for leave to apply for access to a child. Before making a decision the court will consider the applicant’s connection with the child, the risk, if any, of the application disrupting the child’s life to the extent that the child would be harmed by it and the wishes of the child’s guardian(s).

APPEALS

to orders made under the Guardianship of infants Act, 1964 must be made within 14 days. The terms of the order will given in effect while the appeal is pending unless a court directs otherwise.

RULES OF THE COURT

Any agreement in writing between parents relating to custody, access or maintenance can be made a rule of court and if the agreement is breached the same sanctions apply as if it was a court order. Apply to the local district court.

Why not read the Act: Guardianship of Infants Act 1964: