Guardianship is the collection of rights and duties, which a parent has in respect of his/her child. A guardian has a duty to maintain and care for the child and has a right to make decisions in major areas of the child’s life. In particular a guardian decides where a child will be schooled, in what religion he or she shall be reared, whether he or she shall undergo medical treatment and so on. Where there is a dispute concerning arrangements in respect of a child, the primary consideration is the best interests of the child. In other words, the welfare of the child is the main criterion on which the Court makes its decision.
Welfare is defined as “religious, moral, intellectual, physical and social wellbeing” (Section 2, Guardianship of Infants Act, 1964).
Who can be a guardian?
The issue of Guardianship is intimately linked to the marital status of a child’s parents. Only parents can be guardians of their children, if the parents are alive. Married parents of a child are joint guardians and have equal rights in relation to the child (Section 6(1), Guardianship of Infants Act, 1964). This includes children born to parents whose marriage is null and void provided that the decree of nullity is awarded after the child is born or where the child is born within 10 months of the declaration of nullity being handed down.
For children born outside marriage only the mother has automatic rights to guardianship. If the father’s name is on the birth certificate this does not give him any automatic guardianship rights in respect of the child.
How does an unmarried father become a guardian?
An unmarried father can get guardianship rights:
- By marrying the mother of the child
- Agreement with the mother
A father and mother can fill in and sign a statutory declaration for joint guardianship in the presence of a Peace Commissioner, Commissioner for Oath, a Practising Solicitor or a Notary Public. (Section 2(4), Guardianship of Infants Act, 1964). If you are coming to the office to sign a guardianship application on consent, it is important that you bring a valid passport or driver’s license with you. The form that must be signed can be found here.
- Going to Court:
The father can apply to his local District Court to become a joint guardian of his child, whether or not his name is on the birth certificate (Section 6A, Guardianship of Infants Act, 1964). A mother’s views are taken into account but even if she does not consent, this does not mean that the court will refuse the application for guardianship. All the decisions in the Family District Court are made based on the child’s best interests.
- By Will (Testamentary Guardianship)
A mother may, through her will, make the father a guardian in case of her death (Section 7, Guardianship of Infants Act 1964).
- Death of the Mother
In the case of the mother’s death without a will, the Court can, in appropriate cases, make the father a guardian (Section 8, Guardianship of Infants Act, 1964).
Powers and duties of the Guardian
The guardian is prima facie entitled to custody of the child. The guardian can take proceedings for recovery of the child from any person who has unlawfully detained the child. The guardian is also entitled to manage the estate and property of the child.
An appeal to a guardianship order must be made within 14 days in the District Court and within 10 days in the Circuit Court.
Removal of Guardianship Rights:
If the father has been appointed joint guardian by the court or on consent, his joint guardianship can be removed by court order if the court is satisfied that this is in the best interests of the child. A mother can only give up her guardianship rights by placing the child for adoption.
Marriage Following the Birth of a Child:
If the parents of a child marry each other subsequent to the birth of their child then the father automatically becomes joint guardian with the mother. If the mother of the child marries a man who is not the father of a child there is no legal relationship between her husband and her child. If the birth father is a joint guardian, he remains a joint guardian of a child.
Q. Am I automatically the guardian of my child?
A. Married fathers are automatically joint guardians of their children. Mothers are automatically the guardians of their children, regardless of marital status. Unmarried fathers must apply through the courts for guardianship, if the mother does not consent.
Q. I am an unmarried father but my name is on my child’s birth certificate; Am I the legal guardian?
A. No, unfortunately not. Unmarried fathers must make an application for guardianship on consent or through the courts.
Q. How much does a guardianship application to the District Court it cost and how long will it take?
A. Guardianship applications usually cost between €700 and €1000 and usually it takes around 6-8 weeks to get a hearing date in court.