ws 25.07.11 for web:Layout 1 25/07/2011 10:03 Page 22
Your FREE Local Newspaper The Legal Column A. In the case of
a child born outside of marriage in Ireland, only the Mother has automatic rights to Guardianship
though a Father’s name may be registered on the
however does not give him any Guardianship rights in respect of his child. In the event that the Mother and Father agree that the Father can become a joint Guardian, the parents can sign a Statutory Declaration to this effect.
In this edition, Romaine Scally Solicitor, principal in the firm of Romaine Scally & Co., Solicitors, Main Street, Tallaght, Dublin 24, telephone 01-4599506, email email@example.com
, deals with the issue of Guardianship. What does it mean, who has the right to apply for guardianship? We hope that readers will find it interesting.
Q. What does
Guardianship actually mean? People talk about
Guardianship a great deal, but I often wonder
know what it entails legally? Could you please clarify?
A. It is true to
say that there is a substantial amount of confusion in the media in terms of
difference between Custody, Guardianship and
Guardianship is a legal relationship between parents and their children. It is the right of a parent to be involved in all the major
affecting the welfare and upbringing of a child
Education, Health, Religious, Moral and Monetary concerns. It basically describes the group of rights and responsibilities automatically vested in the parent/parents of a child born within marriage and in the Mother of a child born outside marriage in relation
upbringing of a child. A person appointed as
Guardian of a child has a duty to maintain and properly care for the child.
It is very
important to note that only Guardians of a child have the right to custody and access of that child. Whether the father of a child is an automatic Guardian depends on his relationship with the Mother.
married Mother and Father of a child are the most common Guardians and they are so entitled by virtue of Section 6 (1) of the Guardianship of Infants Act, 1964. However, Father
for to the have
GUARDIANSHIP STATUS the parties MUST BE MARRIED AT THE TIME OF THE BIRTH OF THE CHILD. Alternatively,
Father can acquire Guardianship status if the parties marry after the birth of the child.
Q. My child was
born 3 years ago and his Father is on the birth
However, he has not seen the child much. He now says that he wants to apply for Guardianship. Does he have any rights?
declaration must be signed in the presence of a Commissioner for Oaths
Commissioner and it is an important document which should be kept safely. If it is the case that the Mother of the child does not agree to the Father becoming a Guardian then, the Father must apply to the Court
appointed as a Joint Guardian.
to be Such an
application can be made regardless of whether the Father’s name is on the child’s birth certificate or not. In making a decision on such applications, the Court will decide on what is in the best interests of the child.
Q. Father successfully My
child’s applied for
Guardianship over two years ago. Despite doing that, he has never made any effort to see the child and, when he does, he just takes the child to the pub for a few hours. Can I change this Guardianship?
It is a case Guardianship
rights can be removed from Fathers but only if the Court is satisfied that it is in the child’s best interest. It is not possible to answer your query in any detail in the space allowed in this article. You would need to take legal advice and outline
Guardianship. your to the
rights or As
always, in making a decision, the Courts will take the child’s best
consideration. Before you make
application to Court, we would suggest that you take legal advice.
Q. I am a Father
of a 6-year-old girl and would like to apply for Guardianship. How do I go about this?
A. As the Father
of a child, you are entitled to apply for Guardianship. I take it from your question that you are not married to the Mother of the child. If you are married to the Mother then you are
considered a Guardian whether or not your marriage takes place before or after the birth of the child. If, on the other hand, you are not married to the Mother of the child then you will need to make application to the District Court in your
advised above, this can be done amicably but in the absence of agreement with the Mother then you will need to contact your local District Court office
personally. There are various forms to be completed and these forms must be served on the Respondent (in your case, the Mother of the child) at least 14 days before the date of the Court hearing. Obviously you will have to attend in Court on the day. As these applications are taken very seriously, it is always advisable to either ensure that you have
representation on the day of at least to take legal advice in advance of your application.
Q. I need to apply for a passport
for my child. I have had no involvement with her Father since she was born. Do I need to obtain his consent
to get a
To apply for a
passport for your child in circumstances where you are not married to the Father of the child then, you do not have to obtain the consent of the Father but then only if the Father is not on the birth certificate and/or has made no application to Court for Guardianship. You will have
to sign a
declaration before a Commissioner for Oaths to this effect. In the event that the Father of the Child either is on the birth certificate and/or has either obtained an Order for Guardianship or is in the course of so doing then, you will need the Father’s consent to your application for a passport for your child. In the absence of any of the above then, you can apply solely for your child’s passport without
I am a Father
of two children and am legally separated from my Wife. The children live with their Mother. We are joint Guardians and have joint custody. However, I do not get to see my child 50% of the time.
Guardian am I not entitled to spend at least 50% of my time with the children?
A. It is often a
painful reality after a Separation that couples come to realise that joint custody does not mean that the parties will enjoy access to the children 50% of the time. Practical day-to- day
arrangements generally do not facilitate a 50:50 split in terms of time with the children. Many couples have to
by Romaine Scally work
around this reality
after a Separation. There is no connection between Guardianship and Joint Custody. Guardianship
Custodians of those children. You do not say what the current day
automatically granted to
both married of
children. It is the right of a parent to be involved in all the major
regarding the welfare and upbringing of their children. However, the custody arrangements, while
granted on a 50:50 basis
following marriage breakdown, often do not result in an even split of the children’s time with each of their parents.
cases, this is not intended
In most any
punishment and while it may seem harsh, it is really based on the busy timetables of the children and their parents, taking into account homework and outside
school activities. In time,
most couples work out an arrangement which suits them and the children and if this is proving
mediation is often a good idea even post separation. We hope that things will work out for all of you in the near future.
Q. As the
married Father of my children, could I apply for full custody? I am living separate from my Wife for over a year now but I feel that
FREE LEGAL ADVICE CLINIC There will be no clinic during the month of August
with me full-time. A.
married parents of a child or children are
NEXT CLINIC: WEDNESDAY 14TH SEPTEMBER living arrangements
regarding the children. If there are reasons why you feel that you should be granted full day-to-day
then you will need to apply to Court and state your case.
would be impossible to advise comprehensively
relation to the possible success or otherwise of your
without a detailed consultation. However, rest assured that the case will be dealt with seriously by the Court and you will be given plenty of opportunity to state your
regarding the present living arrangements of your
important that such an application is not made without good reason and
without the primary objective
application being the welfare
children. This will be the only concern of the Court,
the interests of is
would benefit from a more
the children secure
children. Even if you were to be granted full day-to-day control of your children, it would be very unusual for a Court not to grant a parent access to their child/ children and, where necessary, they can make a supervised Access Order to allow this to happen where the
demand it. It seems that you would benefit from a consultation with a Solicitor and you should consider same before making your application.
Romaine Scally is the principal in the firm of ROMAINE SCALLY AND COMPANY SOLICITORS Main Street Tallaght, Dublin 24 TEL 4599506 FAX 4599510 email: firstname.lastname@example.org
| Page 2
| Page 3
| Page 4
| Page 5
| Page 6
| Page 7
| Page 8
| Page 9
| Page 10
| Page 11
| Page 12
| Page 13
| Page 14
| Page 15
| Page 16
| Page 17
| Page 18
| Page 19
| Page 20
| Page 21
| Page 22
| Page 23
| Page 24
| Page 25
| Page 26
| Page 27
| Page 28
| Page 29
| Page 30
| Page 31
| Page 32