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 in circumstances where it is predictable that a court application would be successful, unmarried parents would be best advised to avoid the unnecessary stress and hassle of attendance at court in favour of agreeing matters between themselves.  Of course the issues arising in unmarried parenthood are much broader than guardianship and a full parenting agreement dealing with issues of access, custody, and the welfare of the child or children should be considered.

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, Richard Hammond via