Guardianship of Children – Unmarried Fathers

Irish law provides that married parents of children shall jointly be the Guardians of their children.  Guardianship in law amounts to what you would appreciate as parental rights.  It encompasses the duty to maintain and properly care for the child and the right to make decisions about a child’s religious and secular education, health requirements and other matters affecting the welfare of the child; as distinct from actual physical custody of the child.  Custody is the physical day-to-day care and control of a child. Even where one parental guardian has sole physical custody of a child, the other parental guardian is generally entitled to be consulted in relation to matters affecting the welfare of the child.  The child ceases to be the subject of guardianship when he or she reaches the age of 18 years or upon the date of his or her marriage. While the position of the married father is clearly recognised, there is no such protection for the unmarried father who does not automatically have guardianship rights in respect of his children. The Guardianship of Infant’s Act, 1964, specifically recognises the unmarried mother as the sole automatic guardian of the children.  The law was out-dated even when it was put in place but at that stage there were relatively few unmarried fathers to be adversely impacted by the legislation.  The law is now widely out of step with international best practice and the needs of modern Ireland where statistics show that approximately one-third of all children are born outside of a marriage. It is hoped that the Guardianship of Infant’s Act, 1964, will be updated but in the interim unmarried fathers may obtain guardianship rights in respect of their children in three ways: A subsequent marriage between the unmarried parents; An application to court; A Statutory Declaration made by both unmarried parents appointing the father as guardian. Naturally, marrying a person solely to copper fasten rights in respect of the children is a recipe for future difficulty and is to be avoided.  Where there is no obvious reason why a father should not be appointed guardian then it is to be expected that an application to court would be successful.  However that involves putting the unmarried parents on a legal collision course which though often unavoidable should never be the first option. The Statutory Declaration is certainly the preferred option as it involves the unmarried parents signing a document agreeing that the father has a co-equal right in respect of guardianship of the child or children with their mother.  The document would be signed in duplicate so that each parent has a copy.  Once the Statutory Declaration is put in place, then the father so appointed, can only be removed as a guardian by Court Order. In the absence of the agreement of the unmarried mother (to marriage or to appointment by Statutory Declaration) then the only remaining method of appointment is an application to court.  Where the unmarried father can show that he is capable of exercising guardianship rights, is making a financial contribution to the upkeep of the child or children, and there is no other reason (exempli gratia history or pattern of abusive behaviour) then the court is likely to approve the application. However the Statutory Declaration remains the preferred option and particularly...

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Child Custody & Access Applications in the District Court

Irish law provides that the married parents of children shall be the joint custodians of their children. Where the parents of a child are not married to each other the unmarried mother has automatic custody and guardianship of the child. What is Custody? Custody is the physical day-to-day care and control of a child. Even where one parent has sole physical custody of a child, the other parent (if a guardian or joint custodian) is generally entitled to be consulted in relation to matters affecting the welfare of the child. Where parents are separated then practically speaking the child will usually reside with one parent and the other parent will enjoy rights of Access. What is Access? Access is the right of the child to see and enjoy the company of a parent. The Childcare Act 1997 extended Access rights to other relatives of the child. What are the Rights of an Unmarried Father? For an unmarried father to be appointed as a joint custodian he would have to apply to the court for an Order to be made to appoint him as joint custodian. Informal Access arrangements can be made between the parents. This will work where both parents are fair and reasonable. If however agreement cannot be reached between the parties, each party can engage their own solicitor to negotiate on their behalf to reach an agreement which both parents sign. While such an agreement is legally binding an application can also be made to court to have the agreement made an Order of Court for ease of enforcement by the parties.   If agreement cannot be reached the matter can be put before a District Court Judge to decide. Any disputes in relation to Custody and Access will be determined by the Court on the basis that the welfare of the child is the first and paramount consideration. Where the child is considered old enough to express a view on the matter the District Court Judge will request that the wishes of the child be assessed by a child psychologist and take this into consideration when making an Order for Custody and or Access. It is a child’s right to see both parents and Access by the non-custodial parent will only be denied if the court believes that it is not in the best interests of the child. The court can set out the time, place and duration of Access visits and can order supervised Access where another adult is present during visits if it considers it appropriate. It should be noted that an Access and Custody Order is never final and either party can return to the District Court to seek to have the Order amended, varied or discharged at any future date. This information is for guidance purposes only. It does not constitute legal or professional advice. Professional or legal advice should be obtained before taking or refraining from any action as a result of the contents of this publication. No liability is accepted by Hammond Good, Solicitors for any action taken in reliance on the information contained therein. Any and all information is subject to change. For further information on the subject, please contact the author, Joyce A. Good Hammond, at...

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Legal Aid in Family Law Matters

The services of the Legal Aid Board are operated through law centres located throughout Ireland. Legal services for clients in receipt of legal aid are primarily provided by solicitors employed by the Legal Aid Board (“the Board”) working in these law centres.  In certain instances provision of legal services is outsourced to solicitors in private practice. To obtain the services of the solicitor in your local law centre you must satisfy the Board’s financial requirements and must satisfy the Board that your case has merit. An applicant applying for legal advice and / or legal aid in a family law matter must undergo a means test. The applicant will be requested to complete a Statement of Means setting out details of their income and details of all assets owned by them. An assessment will be made by the staff in the law centre to establish if the applicant will qualify for legal aid and also to calculate the amount of contribution to the service which must be paid. The Financial Test To qualify for legal aid in a family law matter the applicant’s disposable income cannot exceed €18,000 and their disposable capital (excluding their home) cannot exceed €320,000. These figures are reviewed from time to time by the Minister for Justice, Equality and Law Reform and the Minister for Finance. Disposable income is the applicant’s gross income from all sources less various allowances in respect of accommodation, dependents, mortgage, tax etcetera. What Contribution is payable? Legal advice and legal aid is not totally without charge in family law matters and a contribution (normally relatively nominal in the context of the value of the services provided) toward the cost of the service must be paid. The applicant will be advised by the law centre of the amount of the contribution required at the outset. Legal advice is verbal or written advice given by a solicitor. Legal advice is provided by solicitors in the law centres. The minimum contribution for legal advice is currently set at €10.  Legal aid is representation by a solicitor in court in relation to a family law matter.  The minimum contribution for legal aid is currently set at €50. How long do you have to wait to see a solicitor? The Board employs a number of solicitors in its law centres throughout Ireland. Once an application has been received by them, an assessment made and legal aid has been granted the applicant is notified in writing of the decision and the applicant’s name is put on a waiting list. The Board is obliged to provide an applicant a consultation with a solicitor within a number of months from the time their application is approved. Services are also provided by solicitors in private practice in certain emergency cases or where an applicant is on the waiting list for some time. When this situation arises the applicant will be notified by the Board that they are entitled to the services of a solicitor in private practice. The applicant will be provided with a list of solicitors on the panel and they may choose one of the solicitors to act on their behalf. The Board will then correspond directly with that solicitor and notify them that they have been chosen to act on behalf of the applicant. The legal...

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Maintenance Payments for Spouses

A married person can seek Maintenance payments from the other spouse following the breakdown of their marriage. The obligation to maintain and support your spouse continues even if the person paying maintenance remarries. There is no clean break from the obligation to support the other spouse following a separation or divorce. Subject to the terms of an Agreement or Court Order a spouse only stops being responsible for the maintenance and support of the other spouse when the spouse receiving the maintenance dies or remarries. Voluntary Maintenance Informal maintenance arrangements can be made between the parties. This will work where both parties are fair and reasonable. If however agreement cannot be reached between the parties, each party can engage their own solicitor to negotiate on their behalf to reach an agreement which both parties sign. While such an agreement is legally binding an application can also be made to court to have the agreement made an Order of Court for ease of enforcement by the parties. Maintenance Orders Made By the Court If the parties are unable to agree on the amount of Maintenance to be paid then an application can be made to either the District Family Court or the Circuit Family Court requesting that an Order be made by the Court directing the amount of Maintenance to be paid. Each party must present evidence of their earnings and details of their expenditure. On hearing the evidence a Judge will make an Order determining the amount to be paid. The maximum amount a District Court Judge can order is €500 per week (which would very rarely arise), and the amount stipulated will depend of the means of each party. If a sum greater than the District Family Court maximum is sought it will be necessary to apply to the Circuit Family Court. If the financial circumstances of either party changes an application can be made to court to have the Order varied by either increasing or decreasing the amount payable.  If the spouse falls into arrears with payments an application can be made to the court for an Enforcement Summons to issue against the offending party. Income Tax Consequences The spouse who is paying maintenance is entitled to a tax deduction for the sum paid in spousal maintenance. The recipient spouse must declare the amount received as part of his or her income for tax purposes. How to Apply for Maintenance A solicitor will assist you in issuing a summons seeking Maintenance. Legal advice and representation is very beneficial in these circumstances. Depending on your circumstances you may qualify for legal aid and you should enquire at your nearest law centre to ascertain if you are eligible for legal aid. If your application is approved a solicitor employed by the Legal Aid Board (“the Board”) working in these law centres may represent you or in certain emergency cases or where an applicant is on the waiting list for some time they will be notified by the Board that they are entitled to the services of a solicitor in private practice. When this situation arises the applicant will be provided with a list of solicitors on the panel and may choose one of the solicitors to act on their behalf. Legal aid is not totally without charge in family...

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Maintenance Payments for Dependent Children

Both parents have a responsibility to financially support their children. In the case of unmarried parents or parents who have separated, one parent usually has custody of the dependent children and looks after their day to day needs. The other parent usually pays money which is called maintenance to the custodian parent to assist with the costs involved of taking care of the children. Paying maintenance does not in itself give a parent access or guardianship rights. Voluntary Maintenance Informal maintenance arrangements can be made between the parents. This will work where both parents are fair and reasonable. If however agreement cannot be reached between the parties, each party can engage their own solicitor to negotiate on their behalf to reach an agreement which both parents sign. While such an agreement is legally binding an application can also be made to court to have the agreement made an Order of Court for ease of enforcement by the parties. Maintenance Orders Made By the Court If the parties are unable to agree on the amount of Maintenance to be paid towards the costs involved for the care of the dependent children then an application can be made to either the District Family Court or the Circuit Family Court requesting that an Order be made by the Court directing the amount of Maintenance to be paid. Each party must present evidence of their earnings and details of their expenditure. On hearing the evidence a Judge will make an Order determining the amount to be paid. The maximum amount a District Court Judge can order is €150 per week, per child but this will depend on the means of each parent. If a sum greater that this is sought it will be necessary to apply to the Circuit Family Court. Contributions towards Christmas, the child’s birthday and back to school expenses may also be sought. How long is Maintenance Payable For? Maintenance may be awarded for a child until the child reaches the age of 18, or if the child remains in full time education until the child reaches the age of 23. If the child has a mental or physical disability such that it will not be possible for the child to maintain him or herself then in such circumstances there is no age limit for seeking maintenance for the support of the dependent child. When a Maintenance Order has been made by the Court either party can apply at a later date to have the amount varied. This means the amount could be increased or decreased. If a party falls into arrears with payments when a Maintenance Order is in place an application can be made to the court for an Enforcement Summons to issue against the offending party. How to Apply for Maintenance A solicitor will assist you in issuing a summons seeking Maintenance. Legal advice and representation is very beneficial in these circumstances. Depending on your circumstances you may qualify for legal aid and you should enquire at your nearest law centre to ascertain if you are eligible for legal aid. If your application is approved a solicitor employed by the Legal Aid Board (“the Board”) working in these law centres may represent you or in certain emergency cases or where an applicant is on the waiting list...

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Access to Grandchildren

An unfortunate feature of many peoples’ lives is to witness the fallout from the breakdown in their child’s relationship with another person.  This can become quite fraught where there are children of the relationship.  In many instances the parents of the children are able to resolve matters between them on their own, or with the assistance of a mediator, or through directions from the court.  Sometimes however, the grandparents’ relationship with the grandchild can be collateral damage in the breakdown of the child’s relationship with the other parent, particularly when that other parent is the primary custodian. Many grandparents are unaware that there is legal recourse available to them in such circumstances.  Nonetheless, while contacting your solicitor for advice might be a good idea, issuing proceeding should be a last resort.  In the first instance ask your child to include some arrangements for contact between you and your grandchild in the discussions with the estranged partner.  If that is not fruitful then try reaching out to the custodian parent to communicate your wish for Access to your grandchild while being careful not to get embroiled in any matter in dispute between the parents.  It may also be helpful to open or keep open lines of communication with the other grandparents.  If communication is not productive the situation might benefit from the involvement of a mediator who will work to assist the parties in bridging the gaps between them. Ultimately, in some situations neither communication nor mediation will resolve the situation leaving recourse to the courts as the only remaining option.  As noted, this course of action should be reserved for the most intractable of circumstances.  Taking a party to court will do nothing to improve interpersonal relations with that party and may involve some expense. Where an application for Access to a child is made by a person other than a parent, the permission of the court to make the application must first be obtained.  This is known as an application for “leave of the court”.  In deciding upon this application the court will consider the applicant’s connection to the child, the risk, if any, of the application disrupting the child’s life to the extent that the child would be harmed by it, and the wishes of the child’s Guardians.  Once this permission has been obtained then the substantive application for Access may be brought.  This mechanism is open to any person who is a relative of the child in question or who has acted in loco parentis to a child (acted in similar standing as that of a parent to the child). The right of Access, is a right of the child rather than the applicant, and the court will at all times be guided by what is in the child’s best interests and depending on the age and maturity of the child may, and in some circumstances must, give consideration to the wishes of the child.  Giving consideration to the wishes of the child is not the same as acceding to the wishes of the child.  The court may deviate from the wishes of the child where it believes that so doing is in the child’s best interests.  These applications are made pursuant to Section 11B of the Guardianship of Infants Act, 1964 (as amended) and may be made...

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