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)
- Social (the capacity of the child to mix with and become part of the society in which they will be brought up)
- 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:
- he can apply to Court under section 6A of the Guardianship of Infants Act, 1964 to be made a guardian or
- 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 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 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.
How to Apply for Custody
The application for custody is normally brought in the District Court and the procedure is the same as applying for maintenance or access (see further down the page for the procedure and the relevant form).
Basically, you use form 58.17 and serve it on the other party at least 14 days before the Court hearing date, unless the application has been certified by the District Court office as urgent. In this case, two days notice is required.
You then file the notice and a statutory declaration of service at least 2 days before the Court hearing date.
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.
How to Obtain Access
The vast majority of access applications are made in the District Court.
The application involves filling out the appropriate form (form 58.17) and lodging it in the District Court office. They will issue the form and insert a date in the Notice for the Court hearing for your application.
You must serve this Notice of the application on the other party (the Respondent) at least 14 days before the Court date. However, if the application is certified as urgent by the District Court office, 2 days’ notice will be sufficient.
The Notice and a Statutory Declaration of Service (forms 10.1/10.2/10.3) must be lodged in the Court office at least 2 days before the Court hearing date.
You then attend Court to make your application. You may have instructed a solicitor to assist you or you can apply yourself if you feel comfortable doing so.
You may also be entitled to legal aid through the District Court Family Law Legal Aid scheme. If you are approved, you will have to make a small contribution to the cost of the solicitor. The solicitor will be paid directly by the Legal Aid Board a set fee set down in the family law scheme.
By Terry Gorry