FAQs - Guardianship, Custody & Access

What Does Guardianship Entitle You To?

Guardianship is described as a set of rights and obligations of a party to make all significant decisions relating to the child. These include but are not limited to, religion, education, residence, travel and medical treatment.

What Is The Difference Between A Parent And A Guardian?

Certain categories of parents are automatically guardians of their children, such as married couples and natural mothers. In other instances where couples are unmarried, there are three ways in which an unmarried father can become a guardian, these are:

1. By operation of law where he has resided with the mother of the child for a period of twelve consecutive months. Three of which must be consecutive following the birth of the child.
2. By both parents completing a Statutory Declaration appointing the father as a guardian.
3. By application to the District Court.

All parents have the right to apply for guardianship, however not all guardians are parents of the child. 

There are certain other categories of persons, not being parents, who are entitled to apply for guardianship, these are:

• Stepparents
• Persons in loco parentis to the child for a period of 12 continuous months and there is no parent/guardian willing or able to exercise the rights and responsibilities of guardianship in respect of the child.
• Foster parents can apply for enhanced guardianship rights in certain circumstances.

It is also open to a guardian to appoint a temporary or testamentary guardian to take up their role in certain circumstances.

Can A Father Get Full Custody?

Custody is not defined in the legislative provisions, however it has been defined by the courts as the right of a parent to exercise physical care and control of the upbringing of their child on a day-to-day basis. 

Marital couples are automatically joint custodians of their children. It is possible for either parent to be granted custody, or for custody to be granted jointly to non-married couples, however in most instances in practice this will mean one parent has day to day control, with the other having access. 

A father can be appointed as the sole custodian of his child, however the Courts favour joint custody between parents.

Does Custody Impact On My Guardianship And Access Rights?

It has been repeatedly stressed by the Courts that where one parent is awarded custody, there is no automatic loss or lessening of the other parent’s rights. The non-custodian parent can continue to exercise their rights and duties as a guardian and also exercise access rights. They must continue to be consulted on all matters affecting the welfare of their child and significant decisions in connection with the child cannot be made without their consent.

Can A Mother Refuse Guardianship?

In the case of unmarried father’s, there are three ways in which guardianship can be acquired, as set out above. In cases where a mother is unwilling to consent to the appointment of a father as guardian, a court application is likely to be necessary. In such applications the Court’s consideration is what is in the child’s best interests, which is many cases is the appointment of the applicant as a guardian.

Who Can Apply For Access?

Access can be applied for by either parent upon the breakdown of the relationship. It is also open to relatives such as siblings, grandparents and extended family members to apply for access to a child. Persons with whom a child resides or has previously resided for a period of time is also entitled to apply for access. In cases such as the latter the Court is required to consider all of the circumstances of the case, including, the applicant’s connection with the child, any disruption which may be caused to the child, the child’s views and the views of the child’s guardian.

How Much Access Is A Parent Entitled To?

Access is widely considered to be the right of the child to enjoy a close relationship and direct contact with important persons, such as their parents, on a regular basis except in instances where it is contrary to the best interests of the child.

There is no one size fits all arrangement for access. Access tends to be very individualised having regard to the best interests of the child and the circumstances of both parents. The level of access obtained by a parent is influenced by a number of factors:

• Suitability of housing
• Work schedule
• School 
• Children’s activities and needs

What Does a Court Consider in Access Applications?

In all applications relating to children the Court is required to consider what is in the best interests of the child having regard to their expressed wishes where they are of an age and level of maturity and understanding sufficient to have weight attached to those views.

In determining what is in a child’s best interests, the Court is obliged to have regard to a number of factors such as: 

• The benefit to the child of having a meaningful relationship with each of his/her parents, relatives and others involved in the child’s upbringing and the history of the child’s upbringing.
• The views of the child where they are ascertainable.
• The physical, psychological, emotional, intellectual, educational and social needs of the child concerned.
• The age of the child and any special characteristics.
• Any harm suffered or witnessed by the child, including household violence.
• Any proposals made by parents in relation to access and custody of the child and the willingness of both parents to facilitate and courage a continuing relationship with the other parent.
• The capacity of the parents to meet the needs of the child, communicate and co-operate appropriately with the other parents and exercise all the powers and responsibilities relating to the application.

How is the Voice of the Child Heard?

In cases relating to guardianship, custody and access where the court wishes to hear the voice of the child there are a number of ways in which that can be facilitated. The most common way in which this can be done is by appointing a suitably qualified child expert to determine and convey the voice of the child. This is done by the appointment of an expert under Section 32 of the Act.

In some rare instances it is open to the Judge to meet the child to ascertain their views, however certain procedures are required for this to take place in a fair manner.

If you would like to find out more or discuss your own particular circumstances in a confidential manner, please do not hesitate to get in touch.