Guardianship covers the rights, responsibilities and obligations that parents – and sometimes non-parents – have for their child or children. As guardians, they have a duty to e.g. maintain and properly care for the child. A guardian also has the right to make decisions in the major areas of the child’s life, such as their school, religion, or medical treatment.
For an opposite sex married couple, both parents automatically become joint guardians when their child is born. For same sex married couples, unmarried couples, step parents and others performing a parental role, it’s not always as straightforward.
Parents may also nominate a testamentary guardian by will, which is the person(s) who will look after your child on your death. It is also possible to appoint a temporary guardian in certain cases, for example, a period of illness or incapacity.
An unmarried father can apply to court to become a legal guardian, whether or not his name is on his child’s birth certificate. The court will take the mother’s views into account but may not require her full consent. They will decide on the basis of what is best for the child.
An unmarried father may also become a legal guardian in a number of other ways:
Alongside the mother, he can sign a Statutory Declaration for Joint Guardianship.
He will automatically be the guardian of his child if he can satisfy a cohabitation period i.e. he lives with the child’s mother for at least 12 consecutive months including at least than 3 months after the child’s birth.
Marriage: if he marries the mother of his child, he automatically becomes a legal guardian.
One parent in a same sex marriage may have guardianship rights for their child. But they may want their partner to have guardianship rights too. It is possible for their partner to apply to become a guardian of the child. Similarly, a step parent may wish to become a legal guardian.
They can apply to court for guardianship if they have co-parented the child for more than 2 years.
If you have cohabited with a parent for at least 3 years, and have co-parented the child for over 2 years, then you can apply to the court to become a guardian. You can also apply if you have
provided for the child’s day-to-day care continuously for over a year. This is in cases where the child has no parent/guardian willing or able to exercise the responsibilities of guardianship.
A parent may still be a legal guardian but e.g. after separation or divorce, may not have custody of their child. Custody essentially means the right to physical and day-to-day care and control of a child. Also, a person may be a legal guardian without being a parent. Custody generally is granted to a parent, although there are instances where custody may be granted to grandparents or other relatives – see Grandparents and Relatives Rights
Applying for custody is normally part of the process of separation and divorce. It may be part of a voluntary separation agreement or mediated agreement, if the couple chooses not to go to court. Or custody decisions may from a court order as part of the legal separation or divorce process.
Parents may agree joint custody. Or one parent will have custody and the other parent will have access. This access gives them the right to visit the child, have the child reside with them for a portion of the time, and to develop a relationship with the child.
If parents agree to Joint Custody, there will very often be one person who is noted as having primary care of the child or children. The degree of access will vary enormously depending on the individual situation. But it can sometimes include a requirement for supervision if there are safety concerns.
Many couples are now seeking shared parenting arrangements with care of the children being divided on a 50/50 basis. This requires a very child focussed approach, and an ability to communicate effectively together without conflict.
If you need advice or support on guradianship or custody, call Alan Finnerty on 01 637 6200. Or you can email him at firstname.lastname@example.org
Orpen Franks Solicitors LLP
28 & 30 Burlington Road, Dublin 4, Ireland
Telephone: +353 1 637 6200
Facsimile: +353 1 637 6262