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LGBT Parents - Family Types

 

 

 

 

Child from a previous opposite sex relationship

Where a child is born as a result of a previous marriage, both biological parents are joint guardians of the child. Where parents have not married each other, only the mother is automatically a guardian of her child.   The father will only have guardianship rights to the child if he has signed, with the mother, the statutory declaration set out in S.I. No 5 of 1998 granting him guardianship, he has guardianship rights by virtue of satisfying the requisite cohabitation period with the mother, or he has been granted guardianship rights through the courts.  See 'guardianship' section.

Where an LGBT couple are sharing the parenting of a child from a previous opposite-sex relationship it is possible for the non-biological parent to become the legal parent or guardian of that child.  

An application can be made by:

  • a person who is married to or is in a civil partnership with, or has been for over 3 years a cohabitant of, a parent of the child and has shared the responsibility of the day-to-day care of the child for at least 2 years

See here for more.

 

Adoptive Parents

Currently it is not possible for a couple not married to each other to adopt a child together.  This applies to both opposite and same sex couples.  However, it is possible for any person aged 21 or over to apply to adopt a child as a sole adopter.  A person cannot be prevented from adopting as a sole adopter on the basis of his/her sexual orientation.  If the sole, potential, adopter is in an existing relationship his/her partner will be assessed as a part of the adoption process.  If the adoption goes ahead only the person who has applied to adopt will become the legal parent and therefore will have legal rights and obligations in relation to the adopted child. However, it is possible for their partner to apply to court for guardianship rights (see above).  If you are the adoptive parent you can make a will appointing your partner as a guardian and leaving custody rights to your partner in the event of your death. 

If you are considering adoption, contact the adoption service in your local Child and Family Agency office, or contact a duty social worker in the Adoption Authority.

 

Foster Parents

It is possible for same sex couples to apply to the Child and Family Agency to foster a child.  All potential foster parents must undergo an assessment process.  Where foster parents have cared for a foster child for a continuous period of not less than 5 years they can apply for ‘enhanced rights’.  These rights are similar to, but less than, guardianship rights.  If granted, the foster parents have the right to consent to medical or psychiatric examination, treatment or assessment with respect to the child and have permission to sign passport applications and school trip consent forms.  Application for these ‘enhanced rights’ may be made through the Courts with the knowledge and consent of the HSE.  The granting of the order must be in the best interest of the child.  In order for the application to be successful it is necessary to have the support of the Child and Family Agency.  The child's wishes must be taken into consideration having regard to the age and understanding of the child.

Since the commencement of new legislation contained in the Children and Family Relationships Act 2015, a person can apply for guardianship rights in respect of a child where he/she has provided for the day-to-day care of a child for a continuous period of 12 months or more and where there is no parent or guardian willing or able to exercise guardianship rights and responsibilities in respect of the child can apply for guardianship in respect of the child.  TUSLA the Child and Family Agency will be notified of such an application.

If you are interested in fostering, you should contact the Child and Family Agency.  You can use their online enquiry form or contact your region’s foster team.  The Irish Foster Care Association can also help with any enquiries you might have around fostering a child, see www.ifca.ie

 

Parents as a result of Assisted Human Reproduction (AHR)

There is no legislation in Ireland governing AHR.  Where a lesbian couple has a child through AHR then the birth mother automatically has guardianship rights to the child.  Her partner has no legal rights.  However, is possible for the non-biological parent to become the legal parent or guardian of that child.  

An application can be made to the court for guardianship, by:

  • a person who is married to or is in a civil partnership with, or has been for over 3 years a cohabitant of, a parent of the child and has shared the responsibility of the day-to-day care of the child for at least 2 years

The birth mother can also make a will appointing her partner as a guardian (testamentary guardianship) with custody rights in the event of her death.

Where the child was conceived using an identified sperm donor it is possible to sign a preconception agreement. There are two types of preconception agreement:  donor agreements, designed to minimise the donor’s legal rights and status; and co-parenting agreements, involving shared parenting.

NOTE:  these agreements are not legally binding and may not be enforced by the courts.  The best interest of the child must always be the paramount consideration in any court hearing.

 

Surrogacy

There is no legislation in Ireland dealing with the situation where a child is born through surrogacy. The Department of Justice and Equality has published very useful guidelines in relation to citizenship, parentage, guardianship and travel document issues in relation to children born as a result of surrogacy arrangements entered into outside the state.  Download here.

 

Transgender People and Parenting

A parent who is transgender retains all parental obligations and rights in respect of his/her biological or adopted children.  In particular, a parent’s gender reassignment does not affect the rights and obligations of the parent in respect of his/her children.  For instance, if a person is the biological father of a child and that person undergoes gender reassignment, and/or lives as a female, she nonetheless remains in law the father of the child.  The legal father retains all the legal rights and obligations associated with fatherhood.  Identical principles apply to mothers who undergo gender reassignment.  In particular, a person cannot legally be denied guardianship, custody or access on the basis of that person’s gender identity or transgender status.

 

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