Custody and access disputes
When relationships breakdown, parents of children often cannot agree the future care arrangements for their children. This can lead to Court applications being made for Orders regulating the custody and access arrangements for the children in the future. If parents can agree, then they can enter into a legally binding contract specifying their agreement and the future care arrangements of the children. These arrangements are reviewable in the future should circumstances change and should the child seek to change the arrangement and is of an age and having attained a sufficient degree of maturity that the Court will likely take that child’s views into account.
Agreeing the future care arrangements for your children is far more beneficial than a Court imposing a regime on you and your children. An agreement can be far more nuanced and detailed than a Court Order is likely to be.
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In a Court application concerning custody, access and guardianship, the Court considers the best interests and welfare of the child. Welfare includes the child's religious, moral, intellectual, physical and social welfare.
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Custody refers to the right to the physical care and control of a child. If a child is born to married parents, then the parents are joint custodians of the child. However, if a child is born outside of marriage, the mother will be the sole custodian of the child unless an agreement or Court Order is made providing for joint custody.
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Access refers to the right to see a child and have them in your care for periods of time. This can be daytime, overnight, weekends, holidays in Ireland and abroad.
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Guardianship refers to the duty to maintain and properly care for a child and be entitled to the right to make decisions about the child's upbringing such as education, religion, medical treatment and other welfare issues.
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If a child is born to married parents, then the parents are joint guardians and have equal rights in relation to the child. However, if a child is born outside of marriage, the mother may be the sole guardian of the child.
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If the parents of a child marry each other after the birth, then the father automatically becomes a joint guardian of the child (provided that the father's name is on the birth certificate). There is, therefore, no need to apply for guardianship rights nor is there any need for the father to adopt the child.
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The father will automatically be a guardian if he has lived with the child's mother for 12 consecutive months after 18 January 2016, including at least 3 months with the mother and child following the child's birth. If there is disagreement as to whether they have been cohabiting for the required length of time, an application for the necessary declaration can be made to the court.
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If the father is not a guardian and if the mother agrees to him becoming a joint guardian both parents can sign a statutory declaration in a prescribed format.
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If the mother does not agree to sign the statutory declaration or agree that the father be appointed as joint guardian, the father can apply to the court to be appointed as a joint guardian. The court will decide what is in the best interest of the child.
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Where a parent is guardian of a child and the parent subsequently marries, enters into a civil partnership or becomes a qualified cohabitant, that spouse/partner/qualified cohabitant can apply to court to become a guardian of the child. He/she must have either shared parental responsibility for the day-to-day care of the child with the parent they live with for at least 2 years or provided the child’s day-to-day care for at least 1 year where the child has no parent or guardian willing or able to exercise their guardianship rights.