Many fathers and indeed cohabiting couples who are not married to each other are under the mistaken impression that the placing of the father’s name on the child’s birth certificate automatically gives guardianship rights to the unmarried father. This is not the case under Irish law.
What is Legal Guardianship?
Guardianship means the rights and duties of parents in respect of the upbringing of their children. It refers to the decisions that must be made during the child’s lifetime which relate to the lifestyle and development of the child and gives the guardian a right to partake in the important decisions in a child’s life for example – education, religion and general issues in respect of upbringing. The rights of parents to guardianship are set out in the Guardianship of Infants Act, 1964.
It should be noted that guardianship is separate to the custody of a child. Custody refers to the day to day care of a child, whereas guardianship involves the responsibility of making decisions about a child’s life, such as school and medical treatment.
Who can be a Legal Guardian?
- The married mother and father are automatically joint guardians of a child.
- The natural mother is automatically a guardian of a child.
- The natural unmarried father is not automatically a guardian of a child. However, since the introduction of the Children and Family Relationships Act 2015, an unmarried father can automatically become guardian if he has lived with the child’s mother for 12 consecutive months. This must include no less than 3 months after the birth of the child.
How does a father become a guardian?
The natural unmarried father can only be appointed a guardian by way of the following:-
- If he subsequently marries the mother of the child;
- He can apply for guardianship to the court (with or without the consent of the mother);
- He can enter into a statutory declaration with the agreement of the mother declaring that they agree to the appointment of the father as guardian of the child.
Whilst the signing of the statutory declaration has the same legal effect as an actual court order, practical difficulties arise with this method as there is no central office where the statutory declaration is filed. It is therefore advisable for all unmarried fathers to bring a court application to obtain a guardianship order. If a father wishes to be successful in his application for guardianship, he should be in a position to demonstrate to the court that he plays an active role in the child’s life and/or wishes to do so and that he is paying maintenance for the child in accordance with his financial circumstances.
If a child is very young, the court may in certain circumstances be reluctant to initially grant guardianship and the court may therefore adjourn the guardianship application for a period of time and review matters at that stage.
Removal Of Guardianship Rights
In Ireland, the only way a mother’s guardianship rights can be removed is if her child is adopted. Fathers and other guardians can have their guardianship rights taken away by a court if the court deems it to be in the child’s best interest.
In the case that a legal guardian becomes seriously ill and is unable to care for a child, they can nominate another adult to act as a temporary guardian. This decision has to be applied to and approved by the district court.
Legal Guardianship Rights
The Guardianship of Infants Act, 1964 permits any person being a guardian of an infant to apply to the court for its direction on any question affecting the welfare of an infant such as guardianship, custody, access and in relation to any other questions affecting the welfare of the child. For example, where a child should attend school where agreement is not possible between the parents of the child. Welfare comprises the religious, moral, intellectual, physical and social welfare of an infant – it therefore has a very broad meaning.
Legal Guardianship and Wills
It is very important if you are the guardian of a child (especially if you are a mother and sole parent or guardian) that you make a Will, appointing a guardian to act on your behalf and ensure care of the child is in place in the event of your death. It is also strongly advised that you discuss this in advance with the proposed guardian and that he/she gives his/her consent to being named in your Will as testamentary guardian. The child’s surviving guardian will then act jointly with the new guardian.
Summary Of Legal Guardianship in Ireland
- The natural mother is automatically the sole guardian.
- Unmarried fathers of children do not have automatic rights to guardianship.
- If the mother’s consent to guardianship is not forthcoming, a court application for guardianship is necessary.
- The placing of the father’s name on the birth certificate does not grant guardianship rights.
- It is vital for a guardian to make a Will and to appoint a guardian to act on his/her behalf in the event of death.
For further guidance on legal guardianship rights, get in touch with our Family Law solicitors.