Family Law: Child Care & Protection

In family law, the area of child care, protection, access, and maintenance is a sensitive one that needs the kind of specialist skills and experiences you get from a HOMS Assist solicitor. Here are some of the areas we can help you with:

  • Guardianship Rights & Responsibilities
  • Child Custody
  • Child Access
  • Adoption
  • Child Abduction

Guardianship Rights & Responsibilities

In the area of family law, guardianship is the legal responsibility for the care of a dependent child. It encompasses maintenance of the child, as well as the right to make decisions about a child’s education, religious instruction, health, and general welfare.  A guardian’s duties end when the child reaches 18, unless the child has a mental or physical disability that prevents them from reasonably taking care of themselves. In these cases, the guardian may be required indefinitely.

Parents’ Guardianship Rights

Married parents automatically become their children’s joint and equal guardians. Only mothers have automatic rights to guardianship for children born outside marriage.  If an unmarried father has lived with the child’s mother for 12 months consecutively, including three months after the birth, however, he also has automatic guardianship rights.  If a marriage is declared null and void, both partners become joint guardians with equal rights. This applies if the decree of nullity was granted following the child’s birth or within ten months of the child’s birth.

Child Custody

Custody refers to the physical day-to-day care and control of a child. It is automatically granted jointly to married parents living together. Once a marriage ends, parents need to decide their children’s living arrangements.  Parents can make informal agreements about custody and child care, but if these break down, they are not legally enforceable. If agreement is not possible, the court will decide. Written agreements can be made a Rule of Court, so be sure to consult an expert family law solicitor to make your custody arrangements.  Custody favours the unmarried mother, who automatically gets sole custody. An unmarried father may make a court application for guardianship and/or custody of his child.  In some cases, parents do not have custody. In these situations, the child may be living with grandparents or other relatives or may be in the care of the Child and Family Agency (Tusla).  

Child Access

Child access concerns the rights of parents, former partners, or grandparents to communicate and spend time with a child.Access can be an informal agreement, but as with child custody arrangements, a court order may be required if parents cannot agree. This will stipulate the amount of time the child will spend with each parent, including overnight, weekends, and holidays.  The sanctions for breaching access orders are severe. If one parent refuses access to the other, the parent who is denied access can apply to the courts for breach of access, with the offending parent running the risk of a custodial sentence, fine, or both.

Adoption

Adoption is the legal process of establishing a parent/child relationship between people who are not related by birth. It is a complex and lengthy process that requires expert advice and guidance to make it as smooth and stress-free as possible.  The Health Service Executive (HSE) assesses people hoping to adopt for their eligibility and suitability. Factors assessed include conditions relating to residence, marriage, religion, and age.

You may seek an adoption order for a child whose:

  • parents are dead
  • parents were not married to each other when they were born or conceived
  • parents married after their birth, but whose birth was not re-registered under the Legitimacy Act, 1931
  • parents have abandoned them (according to High Court proceedings)

You may adopt if you are:

  • A married couple residing together
  • The child’s natural mother or father
  • The child’s relative
  • Widowed
  • Legally separated
  • Single

Note: An adoption order will not be made unless the child’s mother or guardian or any person who has control over the child consents to the making of an adoption order. 

Child Abduction

If a child is removed without permission from the person who has custody, they are considered to have been abducted.  Ireland has signed the Hague Convention on the Civil Aspects of International Child Abduction (1980), which embraces the principle that the court of the child's habitual residence is best placed to decide any custody disputes. Irish domestic law incorporates both the Hague and Luxembourg conventions in the Child Abduction and Custody Orders Act 1991. If you wish to report a child abduction into Ireland, you need to apply to the Central Authority for Ireland at the Department of Justice.

Contact the Gardai immediately, if you believe your child is in danger of being abducted. You can also consult a family law solicitor at HOMS Assist for expert legal advice.

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