What is guardianship?
Guardianship is the collection of rights and duties that a parent (or non-parent – see below) may have 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. religion, school, adoption, consent to medical treatment, passports and decisions about taking the child out of the country, where the child lives and other matters affecting the welfare of the child.
A person can apply for guardianship up until a child reaches 18 years of age, unless the child has married.
Guardianship should not be confused with custody, which is the day-to-day care of the child. See Treoir information section on Access and Custody.
For a parent:
Where a parent has guardianship s/he has the full collection of rights and duties in respect of her/his child. All parents have a duty to financially maintain their children, whether or not they are guardians.
The court will decide what guardianship rights it will grant to a non-parent. These rights could include all or some of the guardianship rights granted to a parent.
When a Child is born, who is automatically the child’s guardian?
When a child is born to parents who have not married each other only the mother is automatically the sole guardian of her child.
How does an unmarried father get guardianship rights?
1. By 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, a commissioner for oaths, or a solicitor.
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
- they have entered into arrangements regarding the custody of (and access to) the child.
The S.I. No 5 of 1998 form can be downloaded from Treoir’s website (see above) or ordered from Treoir on 01-6700120
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.
2. By 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.
A declaration that a person is (or is not) a guardian can be applied for through the courts if there is uncertainty, or disagreement, as to whether or not the father has been cohabiting for the required length of time. The application can be made by a guardian of the child or by the person wishing to seek a declaration that they are or are not a guardian of the child. The court shall make a declaration where it is proved on the balance of probabilities that the person named is or is not a guardian of the child. (Download Court Form No. 58.37 – Notice of application for a declaration).
3. Going to court
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. Before making an application for guardianship, court Form No. 58.49 must be completed. This form is a ‘Statement of Arrangements for Child’. Download here
While the mother’s views are taken into account by the court in making a decision, the fact that she may not consent does not mean that the court will refuse an order for guardianship. The decision of the court will be made with the best interests of the child being the first and most important consideration. If you are not happy with a decision made by the court you have 14 days in which to appeal (see below). The terms of the order will come into force while waiting for the appeal unless a court directs otherwise.
4. Marriage following the birth
If the parents of a child marry each other following the birth of their child, then the father automatically becomes a joint guardian.
If a parent (who is a guardian) marries someone other than the parent of the child, his/her spouse will not have an automatic legal relationship to the child. However, the spouse can apply for (limited) guardianship rights if she/he has shared the responsibility of the day-to-care of the child for at least 2 years (see ‘Who else can become a guardian?’).
The only way the spouse can have full legal rights in relation to the child is through adoption. Step-parents can apply to adopt their spouse’s or partner’s child without the partner, who is already the biological parent of the child, also applying to adopt the child. This is called ‘step-parent adoption’. If the child is adopted the other biological parent will lose all legal rights in relation to the child.
For more information on step-parent adoption see here…
Who else can become a guardian?
Since commencement of the relevant legislation contained in the Children and Family Relationships Act 2015, 18th January 2016, it is possible for a person other than a parent to apply to court to be appointed as guardian of a child. (see court form below)
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
- a person who has provided for the day-to-day care of the 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. TUSLA the Child and Family Agency will be notified of such an application.
NOTE: The appointment of additional guardians shall not affect the guardianship rights of existing guardians. Guardianship rights for non-parents may be limited to making decisions on day-to-day matters in respect of the child. The court will make its decision in the best interests of the child and may have regard to the views of the child where possible given the child’s age and understanding. Each parent or guardian of the child will be notified of an application to appoint a person other than a parent as a guardian of a child. The consent of all guardians will be required. However, the court may make an order dispensing with the consent of a guardian if it is satisfied that the consent is unreasonably withheld and that it is in the best interest of the child to make such an order.
A court-appointed guardian continues to be a guardian of a child up until the child reaches 18 years of age.
See Court Form: 58.30 Notice of Application by an eligible person to be appointed a guardian.
See Court Form: 58.31 Order appointing eligible person to be a guardian.
Before making an application for guardianship, court Form No. 58.49 must be completed. This form is a ‘Statement of Arrangements for Child’. Download here
A qualifying guardian* may nominate a person (nomination form) to act as a guardian if he/she is unable, through serious illness or injury, to exercise his/her guardianship rights. The nomination must be made in writing and can specify the rights and responsibilities that the nominated person can exercise. The nominated person must then apply to the court for guardianship rights when and if necessary. Each guardian, parent and TUSLA the Child and Family Agency will be informed of such an application. The decision of the court will be made in the best interests of the child and may take the views of the child into account where possible given the child’s age and understanding.
*A qualifying guardian, in relation to a child, means a person who is a guardian of that child and who:
- is the parent of the child and has custody of him/her, or
- not being the parent of the child, has custody of him or her to the exclusion of any living parent of the child.
What if a person obtained guardianship rights, or equivalent, in another State?
Guardianship rights and/or similar rights e.g. parental responsibility obtained in other jurisdictions* are recognised in this State. The courts in Ireland may have the right to remove, vary or enforce these rights depending on the habitual residence of the child and the specific circumstances.
If guardians don’t agree
Where guardians cannot reach agreement on important issues concerning the child they can consider mediation (see below) and/or collaborative law (see below) and/or apply to the court for direction. The court in making a decision takes into account the views of all guardians. The decision of the court will be made with the best interests of the child being the first and most important consideration. The court must have regard to the views of the child taking into account the age and understanding of the child.
If you are having difficulty in agreeing parenting issues you might think about mediation. Mediation is where a third party, the mediator, helps parents/guardians/family members reach agreement. Mediation encourages all parties to co-operate with each other in working out arrangements concerning their children. Any written agreement can be made a Rule of Court (see below).
NOTE: a free mediation service is currently available through local District Courts located in Dublin (Dolphin House), Naas, Nenagh and Clonmel, Limerick City, Cork City and Tralee. Check with your local district court for availability.
Collaborative law is where parents/guardians/family members work with specially trained lawyers, receive legal advice and guidance, and together with the lawyers, discuss and attempt to resolve issues through face-to-face meetings. Decisions are made by the parties involved. A written agreement can be made a Rule of Court (see below).
Removal of guardianship rights
A mother’s guardianship rights can only be removed if her child is adopted. Other guardians can have guardianship rights removed by the court if the court is satisfied that this is in the best interests of the child.
Guardians and Wills – Testamentary Guardianship
All parents who are guardians and other guardians who have the custody (day-to-day care) of a child should make a will appointing a guardian to act on their behalf in the event of their death before the child is 18. This is especially important where a parent/guardian is a sole guardian. This is called testamentary guardianship. It is advisable to talk it over with someone who could and would be willing to act as guardian and get his/her consent to be named in the will as a testamentary guardian. The surviving guardian/s (if any) then act together with the testamentary guardian. If a parent dies without appointing a guardian in a will it is possible for someone with an interest in the child to apply to the court to be appointed a guardian of the child.
What is a Rule of Court?
Where an agreement is entered into and made in writing (including written agreements made during mediation), an application can then be made to court for an order to make that 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.
If you are not happy with a decision made by the court you have 14 days in which to appeal. The terms of the order will come into force while waiting for the appeal unless a court directs otherwise.
- Where guardianship and access/custody are being applied for, separate applications must be made to the court for each one, though all applications can be heard at the same hearing.
- Family law court hearings are not open to the general public.
- Parents can represent themselves in court.
- Some parents may qualify for legal aid. Contact the Legal Aid Board: LoCall 1890 615 200, www.legalaid.ie.
- If you would like to talk through your individual situation call us on our confidential helpline at 01 670 0120.