News for Fathers!
Paternity Leave and Benefit Bill 2016 has been signed into law – 29/7/2016
As a result of the commencement of new legislation, fathers are entitled to two weeks of paternity leave and two weeks of paternity benefit for babies born on or after 1st September 2016. Fathers may start the combined package of paternity leave and paternity benefit at any time within the first 6 months following birth or adoption of a child. The PRSI contribution conditions and the rate of benefit paid will be the same as those for Maternity Benefit (€230 per week). See here for further information.
Updated: September 2016
Many unmarried fathers assume they have joint guardianship rights if their names are on their child’s birth certificate. Not so!!
What are my legal responsibilities in respect of my child?
All fathers have a legal responsibility to financially maintain their child. This applies whether or not the father is a legal guardian or whether or not his name is on his child’s birth certificate.
What are the legal rights in respect of children?
Guardianship is the collection of rights and duties that a parent (or non-parent in certain circumstances) has in respect of a child. For example, a guardian has a duty to maintain and properly care for the child and has the right to make decisions in the major areas of the child’s life e.g. choice of religion, of school, adoption, consenting to medical treatment, passports and decisions about leaving the country, where the child lives and other matters affecting the welfare of the child.
Access is the right of a child and a parent and/or guardian who do not live together to spend time together. This right can also be granted to relatives and others.
Custody is having the responsibility for the day-to-day care of a child.
What are my legal rights in respect of my child?
Unmarried fathers do not have any automatic legal rights in respect of their children. In certain circumstances, a father who is cohabiting with the mother of his child may acquire automatic guardianship rights – see below.
What are my legal rights in respect of my child if my name is on my child’s birth certificate?
None. In Ireland having your name on the birth certificate does not in itself give you any legal rights in respect of your child. You are, however, presumed to be the child’s father when your name is on the birth certificate.
How can I get legal rights in respect of my child?
A father can get guardianship rights in any of the following ways:
1. Agreement with the mother
A father and mother can complete and sign the statutory declaration for joint guardianship (S.I. No. 5 of 1998) in the presence of a Peace Commissioner or a Commissioner for Oaths.
This form declares that:
- the parents have not married each other
- they are the parents of the child and
- they agree to the appointment of the father as a guardian.
When this form is signed and witnessed it needs to be kept in a safe place as it is the only evidence that the father is a guardian. There is no central register for these Statutory Declarations.
The S.I. No 5 of 1998 form can be downloaded here or order from Treoir on 01-6700120 or LoCall 1890 252 084.
2. Satisfying the cohabitation period
A father who lives with the child’s mother for at least 12 consecutive months including not less than 3 months after the child’s birth, will automatically be the guardian of his child.The three months period does not have to take place directly after the birth of the child. It can be fulfilled any time before the child turns 18 provided that it is part of the 12 consecutive months during which the parents have lived together. The cohabitation period can only be calculated going forward from the commencement date of the Children and Family Relationships Act 2015. This means that guardianship will only be acquired automatically where parents live together for at least 12 months after the 18th of January 2016.
3. Going to Court
If all else fails, the father can apply to the local district court to become a joint guardian of his child, whether or not his name is on his child’s birth certificate. In the majority of cases a father will be granted guardianship.
See here for more about Guardianship.
Access and Custody
Parents can make informal arrangements regarding access and custody but if these arrangements break down they cannot be legally enforced. However, any written agreement between parents can be made a Rule of Court (see below).
A father can apply to the court for access and/or joint/full custody. Court orders can only be changed through the court.
See here for more about Access and Custody.
All fathers have a legal responsibility to financially maintain their child. This applies whether or not the father is a legal guardian or whether or not his name is on his child’s birth certificate. Where a father is not paying maintenance the court can order that maintenance be paid in respect of his child. An unmarried father does not automatically have a legal responsibility to financially maintain the mother of his child. However, where the parents have cohabited and the mother is a qualified cohabitant the father may have a liability to pay maintenance to the mother. See cohabiting parents.
See here for more about Maintenance.
What is a Rule of Court?
Where parents enter into an agreement in writing for maintenance, custody and/or access (including written agreements made during mediation), either parent may make an application to court for an order to make the agreement a Rule of Court. The court may make an order if it is satisfied that the agreement is fair and reasonable and adequately protects the interests of the child. The agreement then has the same standing as a court order. A written agreement that is not made a rule of court is NOT legally binding.
Provided that the mother was not legally married to someone else 10 months before the birth of the child, you automatically become a joint guardian of your child with the mother.
What are the rights of my spouse in respect of my child if I marry someone other than the mother of my child?
Your spouse will have no automatic legal rights in respect of your child but can apply to the court for guardianship rights. See ‘guardianship’.
The rights you already have in respect of your child do not change on the marriage of the mother:
- If you are already a joint guardian you remain so
- If you do not have any guardianship or access rights in respect of your child you can still apply for them, unless the child has been adopted by the mother and her husband
- You still have a duty to maintain your child unless your child is adopted.
Note: A step-parent can apply to the court for guardianship rights. See ‘guardianship’.
- If the mother and her husband (or anyone else) apply to adopt your child the law requires that, if possible, you are consulted before any adoption order is made in respect of your child, even if you are not a guardian of your child. If it is not possible to contact you the Adoption Authority will require an order from the High Court before an adoption can go ahead. If a father is concerned that he may not be consulted by the Adoption Authority, he can make a request in writing to the Authority that he be consulted, before or after the birth of his child.
- If you have joint guardianship rights in respect of your child then your consent is required before an adoption order can be made.
- If your child is adopted your child becomes a child of the adoptive family as if s/he had been born into that family. This legally excludes you permanently from your child’s life. You no longer have any possibility of applying for any rights in respect of your child and you no longer have a responsibility to financially maintain your child. It is possible to agree informal access arrangements between parents but these are not legally enforceable.See here for more about step-parent adoption.
Information for cohabiting parents is available in our cohabiting parents section.