Unmarried fathers will automatically become guardians of their children if they meet a cohabitation requirement.
An unmarried father who cohabits for 12 months with the child’s mother, including 3 months following a child’s birth, will automatically become the child’s guardian.
This provision is not retrospective, so guardianship will only be acquired automatically where the parents live together for at least 12 months after 18 January 2016.
-A person other than a parent may become the child’s guardian, if married to or in a civil partnership with the child’s parent or if s/he has cohabited with the child’s parent for over 3 years and if the person has shared responsibility for child’s day-to-day care for more than 2 years.
It will also be possible for the court to appoint a person as a child’s guardian if that person has been responsible for the child’s day-to-day care for over a year and if no parent or guardian is willing to assume the responsibilities of guardianship.
The powers of court-appointed guardians will generally be limited to decisions on day-to-day matters. The decisions reserved to full guardians are decisions on the child’s place of residence, his / her religious, spiritual and cultural upbringing and on medical matters, placement for or consent to adoption of a child and on the issue of a passport for a child.
It will be possible for a guardian parent to nominate a temporary guardian for his / her child through a court-based process if the parent is suffering from serious illness or injury which would prevent him or her from exercising his or her guardianship responsibilities. The court will appoint the temporary guardian and will have the power to limit that person’s responsibilities, taking account of any limitations imposed by the parent.
-A parent’s spouse, civil partner or cohabitant of not less than 3 years will be able to apply for custody where s/he has shared parenting of the child for 2 years. A grandparent or other relative will be able to apply to court for custody of a child where s/he is an adult who has undertaken the child’s day to day care for more than 12 months and the child has no parent or guardian willing or able to act as guardian.
A grandparent or other relative will be able to apply to court for custody of a child where s/he is an adult who has undertaken the child’s day to day care for more than 12 months and the child has no parent or guardian willing or able to act as guardian.
-Relatives of a child such as grandparents or those acting in loco parentis will be able to apply to have access to children more easily in the context of relationship breakdown.
-A child’s best interests will be the paramount consideration for the court in proceedings on guardianship, custody or access.
-The court can impose enforcement orders where a parent or guardian has been denied custody or access. These may include requiring that he or she get compensatory time with the child, that his or her expenses be reimbursed or that one or both parties attend parenting programmes, family counselling or receive information on mediation.
-A child co-parented by civil partners will have the same protections as are enjoyed by a child of a family based on marriage. The court will also be able to order a civil partner to pay maintenance for the support of a dependent child of the civil partners, including where the child is the child of only one of the civil partners.
-A maintenance responsibility may be imposed on a cohabiting partner for a partner’s child where the partner is a guardian of the child.
The relevant commencement order is the Children and Family Relationships Act 2015 (Commencement of Certain Provisions) Order 2016.
Have you a Court Order for maintenance but payments are not being made?
You can pursue the arrears of maintenance, and the creditor runs the risk of going to jail for contempt of court.
How do you pursue arrears?
Firstly, you must make an application for the issue of a summons. It shall be in writing (and may be by the lodgment with the Clerk of a completed draft form of summons) and shall include:
(a) a copy of the antecedent order concerned;
(b) the period(s) for which the monetary amounts directed to be paid by the antecedent order have not been duly paid;
(c) the amount of the arrears, and any amount provided by the antecedent order for costs and expenses which is unpaid;
(d) a statement that the applicant understands that the information included in the application may have to be proved on oath at the hearing of any summons issued on foot of the application.
The summons shall be in the Form 57.1 or Form 57.3 Schedule C. The summons shall, in addition to requiring the attendance of the defaulter at a sitting of the Court, also require the defaulter to complete, detach and lodge with the Clerk not less than one week before the date of the said sitting a statement of means and assets (in the Form 53.3 Schedule C, with the necessary modifications), which shall be attached to the summons.
Persons affected by garnishee order
A person served with an order who is unable to comply with the order may apply to the Court by notice of application in the Form 57.5 Schedule C to set aside or vary the order. A copy of the notice shall be served on the defaulter and on the applicant not later than seven days before the hearing of the application and the original notice shall be lodged with the Clerk not later than four days before the hearing of the application.
Warrant of detention
Where a failure by the maintenance debtor is treated as constituting contempt of court and an order of imprisonment is made, the warrant of detention shall be in accordance with Form 57.7 or 57.8Schedule C, as appropriate.
Application to purge contempt
Where a person is imprisoned for contempt of court in accordance with section 9A of the Act of 1976:
(a) the person shall be notified in writing of the action required to purge his contempt;
(b) the Court may direct that, if the contempt has not previously been purged, the person shall be brought back before the Court at a place and time fixed by the Court.
The above is a summarised version only of what’s involved.
Even though you can follow this procedure yourself you might be better off engaging the services of a solicitor to ensure you are professionally represented and are not given the run around by somebody who does not hold Court Orders or their maintenance obligations in high regard.
You can apply for maintenance in the District Court where either party to the proceedings ordinarily resides or carries on any profession, business or occupation.
The application will be heard in private-only officers of the Court, the parties and their legal representatives, witnesses (subject to the provisions of Order 8 rule 2 of these Rules) and such other persons as the Judge in his or her discretion shall allow, shall be permitted to be present at the hearing.
An application for a maintenance order shall be preceded by the issue and service upon the respondent of a summons in the Form 54.1 or 54.2 or in the Form 54.3 or 54.4 Schedule C, as appropriate.
Application to discharge maintenance
An application by a maintenance debtor for the discharge of a maintenance order shall be preceded by the issue and service upon the maintenance creditor of a summons in the Form 54.9 Schedule C. The order of the Court granting the application shall be in the Form 54.10 Schedule C.
Application to discharge or vary order
An application by either party to the proceedings to discharge or vary a maintenance order shall be preceded by the issue and service upon the other party of a summons in the Form 54.11 Schedule C. The order of the Court granting the application shall be in the Form 54.12 Schedule C.
Where the Court directs that payments under a maintenance order, a variation order or an interim order shall be made to the Clerk, such Clerk shall send a notice in the Form 54.18 Schedule C by prepaid ordinary post to the maintenance debtor indicating the place at which and the days and hours during which payments under the order should be made.
The Clerk shall give a receipt to the maintenance debtor for each payment made by him or her and shall transmit such payment to the maintenance creditor or, if authorised in writing by the maintenance creditor so to do, the Clerk may transmit the payment to the competent authority.
Recovery of arrears by Clerk
Where payments to the Clerk under a maintenance order, a variation order or an interim order are in arrears, and such Clerk receives a request in writing in the Form 54.21 Schedule C from the maintenance creditor to take such steps as he or she considers reasonable to recover such arrears, such Clerk may make application under section 10 of the Act for an attachment of earnings order or under section 8 of the Enforcement of Court Orders Act, 1940 (in accordance with the provisions of Order 56 or 57, as the case may be of these Rules)
Service of summonses
A summons required by this Order to be served 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 (21 days if by registered post) before the date of the sitting of the Court to which the summons is returnable.
The original of every such summons served, together with a statutory declaration as to service thereof, shall be lodged with the Clerk at least two days before the said date of hearing.
Orders to secure payments
Where the Court has made an order providing for periodical payments by way of support or maintenance by a maintenance debtor to a maintenance creditor, an application may be made to the Court on a date subsequent to the date to secure the said payments to the maintenance creditor. Such application shall be preceded by the issue and service of a notice in the Form 54.22 Schedule C. The order of the Court granting such application shall be in the Form 54.23 Schedule C.
The Social Welfare act, 1993 obliges both spouses in a marriage to provide financial support for each other and their children. This is called maintenance.
Maintenance is also known as periodical payments orders after a divorce or judicial separation.
The Family Law (Maintenance of Spouses and Children) act 1976 governs the making of maintenance orders or periodical payments orders in Ireland.
Provision must be made for dependent children of the family and this includes children of both spouses or of either spouse. A dependent child is one who is under the age of 18 or 23 if in full time education.
Maintenance of Children
The Status of Children Act 1987 obliges the maintenance of non marital children. In fact, both parents, regardless of their marital status-unmarried, married, separated, divorced-have an obligation to maintain their children financially.
In practice, this usually involves the parent who does not have custody paying maintenance to the parent who has day to day care and control of the children-custody. Because the parent who has custody has the day to day costs associated with the children.
Qualified cohabitants, in certain circumstances such as where the relationship ends through death or separation. However there is no automatic right to such orders or any financial relief-the Court will decide based on the circumstances.
A Maintenance Order
To apply for a maintenance order under the Family Law (Maintenance of Spouses and Children) act 1976 you must be a spouse and there is facility to apply for an interim maintenance order prior to the hearing of the application for a maintenance order.
A maintenance order compels a spouse to make periodic payments to the other spouse. The amount and times of payment will be directed by the family law Court.
5.—(1) (a) Subject to subsection (4) of this section, where it appears to the Court, on application to it by a spouse, that the other spouse has failed to provide such maintenance for the applicant spouse and any dependent children of the family as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that the other spouse make to the applicant spouse periodical payments, for the support of the applicant spouse and of each of the dependent children of the family, for such period during the lifetime of the applicant spouse, of such amount and at such times, as the Court may consider proper.
(b) Subject to subsection (4) of this section, where a spouse—
(i) is dead,
(ii) has deserted, or has been deserted by, the other spouse, or
(iii) is living separately and apart from the other spouse,
and there are dependent children of the family (not being children who are being fully maintained by either spouse), then, if it appears to the Court, on application to it by any person, that the surviving spouse or, as the case may be, either spouse has failed to provide such maintenance for any dependent children of the family as is proper in the circumstances, the Court may make an order (in this Act referred to as a maintenance order) that that spouse make to that person periodical payments, for the support of each of those dependent children, for such period during the lifetime of that person, of such amount and at such times, as the Court may consider proper.
(c) A maintenance order or a variation order shall specify each part of a payment under the order that is for the support of a dependent child and may specify the period during the lifetime of the person applying for the order for which so much of a payment under the order as is for the support of a dependent child shall be made.
(2) The Court shall not make a maintenance order for the support of a spouse where the spouse has deserted and continues to desert the other spouse.
(3) Where the applicant spouse has committed adultery, then-
(a) if the other spouse has condoned or connived at, or by wilful neglect or misconduct conduced to, the adultery, the adultery shall not be a ground on which the Court may refuse to make a maintenance order for the support of the applicant spouse,
(b) if the other spouse has not condoned or connived at, or by wilful neglect or misconduct conduced to, the adultery, the Court may, notwithstanding the adultery, make a maintenance order for the support of the applicant spouse in any case where, having regard to all the circumstances (including the conduct of the other spouse), the Court considers it proper to do so.
(4) The Court, in deciding whether to make a maintenance order and, if it decides to do so, in determining the amount of any payment, shall have regard to all the circumstances of the case and, in particular, to the following matters—
(a) the income, earning capacity (if any), property and other financial resources of the spouses and of any dependent children of the family, including income or benefits to which either spouse or any such children are entitled by or under statute, and
(b) the financial and other responsibilities of the spouses towards each other and towards any dependent children of the family and the needs of any such dependent children, including the need for care and attention.
You will have to show that the other spouse has failed to provide proper maintenance in the circumstances and ultimately the Court will decide what is appropriate in each case. It is not necessary that the spouses are living apart.
A maintenance order can be varied (changed) or discharged after one year where there is a good record of payment.
How is the amount of maintenance calculated?
Firstly, a Court will only make an order for maintenance where the respondent spouse has failed to make proper provision in the circumstances of the case.
To decide on the amount of any order the Court will look at
I. The income, earning capacity and financial resources of both parties and their dependent children
II. The financial responsibilities of both parties
III. The conduct of both parties (less important now as “need” is the principle criterion)
So, it will boil down to the needs of the applicant spouse and children and the resources of the respondent spouse.
The overall goal of the Court will be to make proper provision in each case and will have to balance the needs of one party and the children against the resources of the other spouse.
Generally if one spouse is involved in another relationship this too will be taken into account. Variation of maintenance orders can be obtained if circumstances change significantly and there is also provision for lump sum payments to be made although the max. that the District Court can order is €6,348.69.
The leading case dealing with the criteria to decide on the amount of a maintenance order is R.H. v N.H. 1986 which set out
after separation, there are two households
the Court must look at the minimum reasonable requirements of the dependent spouse and children
the Court must look at the income and/or earning capacity of the dependent spouse
the Court must find out the net income of the dependent spouse (if there is assets generating little income the Court will order these to be sold)
the Court must find out the minimum reasonable requirements of the respondent spouse. This is the most important factor-the ability of the respondent to pay.
Generally, second relationships and the income or expense of that relationship is taken into account in making an order for maintenance.
Spousal conduct can lead to a spouse being barred from obtaining a maintenance order in respect of him/herself but will still be able to get one in respect of children.
The Status of Children Act, 1987 allows a parent to apply for maintenance against the other parent in respect of the child where the child is born outside marriage.
The Family Law Act, 1995 provides for the making of lump sum payments which can be made in addition to or instead of periodical payments. The maximum allowable in the District Court is €6,348.69.
Parties can reach agreement themselves in respect of maintenance. This can be simply in respect of maintenance or as part of a separation agreement. However, the parties can still go back to Court and cannot exclude the operation of the Family Law (Maintenance of Spouses and Children) act 1976. The 1976 Act also allows any agreement to be made a rule of Court, provided it is ‘fair and reasonable’.
The max. payment that the District Court can order by way of maintenance orders is €150 per week per child and €500 for the spouse. The Circuit Court has unlimited jurisdiction.
But regardless of the formalities of divorce or judicial separation each spouse can enter into an agreement to provide for each other and dependent children. It is important to note though that even if parties do come to an agreement themselves neither party is prevented from going back to Court to seek an order for maintenance as there is no “clean break” recognized in Irish family law.
If the party who is obliged to pay maintenance refuses to do so there are various mechanisms which are intended to remedy this problem such as attachment of earnings orders and the Enforcement of Court Orders Act, 1940 or ordinary debt collection proceedings as the Enforcement of Court orders Act, 1940 only allows you to claim 6 months arrears maximum.
However, arrears going back further than 6 months can be pursued through ordinary debt collection proceedings.
In fact, the Family Law Act, 1995 provides that an attachment of earnings order will be automatically made on the granting of a maintenance order unless the respondent spouse can prove to the Court that he/she will make the payments without the necessity for it.
Maintenance Orders Made Abroad
Maintenance orders made abroad can be enforced in Ireland.
For example, the Maintenance Orders Act, 1974 allows the enforcement of orders made in the UK and the enforcement of orders made here in the UK. The Jurisdiction of Courts and Enforcement of Judgments Act, 1998 allows the enforcement of maintenance orders throughout the European Union. The Maintenance Act, 1994 provides for the enforcement of maintenance orders made in a wider range of countries than just the EU.
How to Apply for a Maintenance Order
Most maintenance applications will be brought in the District Court,unless a higher court is dealing with a related judicial separation or divorce proceeding.
You need to issue and serve a maintenance summons on the other parent. The form is 54.1/54.2/54.3,54.4/54.11. You can do this yourself or engage a solicitor.