Children & Family Law

Q1: What is Guardianship?
A1: Guardianship is a legal relationship between parents and their children. Married parents are joint guardians of their children and have rights and duties relating to their children's upbringing. An unmarried mother is the sole guardian of her child unless she consents to the father's appointment as guardian. Where an unmarried mother does not consent to the father being appointed guardian then the father must apply to court to be so appointed.


Q2: What is custody?
A2: Custody is the physical day to day care and control of a child or children. It is just one aspect of the wider concept of guardianship. A parent who does not have custody still has the rights and duties of a guardian (unless a court has ordered otherwise).


Q3: Who has custody in the event of parents separating?
A3: (a) Parents can agree between themselves as to which of them will have the physical care and control of their children, or
       (b) If there is a dispute either parent may make an application to the court for a decision on the matter.


Q4: How does the court decide who will have the children.
A4: The welfare of the child is the first and main aim of the court. The child's welfare is considered under the headings:
(a) religious and moral
(b) intellectual
(c) physical and social


Q5: When one parent has custody does the other lose all rights regarding the child?
A5: No. The non-custodial parent usually retains the rights to:
(a) access the child - this can be arranged between the parents or determined by application to the Court. The child has a right to both parents unless this may be harmful to the safety or welfare of the child.
(b) guardianship - s/he is entitled to be consulted on all matters affecting the child's welfare.
(c) make an application to the Court under Section 11 of the Guardianship of Infants Act 1964 for a direction on any dispute affecting the child's welfare.


Q6: Can persons other than the parent be guardians of the child?
A6: Yes. Both parents have the power to appoint a guardian to act in the event of their death. If a guardian is so appointed s/he acts jointly with the surviving parent. Also the Court has the power to appoint a guardian if the deceased parent has not done so or if the appointed guardians are dead or refuse to act. Any person interested in the child's welfare may apply to the Court to be appointed a child's guardian if the parents are deceased.


Q7: When do guardianship duties end?
A7: The age of majority is 18 years. Generally rights and duties pertaining to a child will cease at this age unless the child is disabled.


Q8: What can happen if the custodial parent refuses to allow the non-custodial parent access to the child?
A8: Once an access order is obtained from the Court then any failure or refusal by the custodial parent to comply with such an order (i.e. allow access) is deemed to be in contempt of court and can result in a term of imprisonment and/or fine.


Q9: Who has a duty to maintain a child?
A9: Both parents have a responsibility to maintain their children. This responsibility exists regardless of who has custody. Parents are expected to, contribute to maintenance in accordance with their earnings. The duty to provide proper maintenance is a legal obligation under the Family Law (Maintenance of Spouses and Children) Act 1976. Parents cannot contract out of this obligation. Parental responsibility to maintain a child ceases when the child is 18 years of age, unless the child is in full time education. In this case responsibility continues until such education is completed or until the child attains 23 years, whichever is sooner. The duty to maintain children exists independently of any maintenance arrangement between the spouses in respect of one another.


Q10: What can be done in the event of a spouse with income failing to provide adequate maintenance?
A10: An application can be made to the District or Circuit Court under the Family Law (Maintenance of Spouses and Children) Act 1976 for a maintenance order.


Q11: Can anything be done if a parent refuses to pay maintenance in accordance with a maintenance order?
A11: It is possible to get an order for a defaulting parent's employer to pay the maintenance out of his/her earnings. This is called 'An Attachment of Earnings Order'. If the parent goes to England it is possible to have the order enforced there.


Q12: What does 'Ward of court' mean in the context of children?
A12: When a child is made a ward of Court all matters affecting the ward's up-bringing become the responsibility of the Court. The Court determines matters such as the child's residence, education, maintenance, holidays, etc. A third party can seek custody of a child against a parent, or seek to obtain protection for a child against the actions of a parent, by bringing wardship proceedings.


Q13: Who is entitled to apply for a child's passport?
A13: Both parents must sign the passport application form. In the event of a dispute about taking the child abroad an application may be made to the District Court, under Section 1 of the Guardianship of Infants Act 1964, for a direction on the matter.


Q14: How is a child's passport obtained when the parents are separated and not in contact?
A14: An application may be made to the District Court for an order directing the Passport Office to issue a passport without the absent parent's consent. The Court may direct the passport to be issued for a specific period.


Q15: In case of conflict or feared abduction can one parent take a child abroad without the consent of the other?
A15: No. If a parent fears the other parent may try to remove a child from the jurisdiction without consent s/he may apply to the Circuit or District Court under Section 11 of the Guardianship of Infants Act 1964 for an order prohibiting the removal of the child.
Alternatively, one may apply for an 'injunction' to prevent the removal of the child and to order the production of the child in the Court. Proceedings may also be brought to have the child made a ward of the Court.
Note: The Child Abduction and Enforcement of Custody Orders Act 1991 deals with problems arising when a parent abducts a child(ren) into/from Ireland against the other parent's wishes or in defiance of a Court Order.


Q16: What can a parent do if the other parent has already taken the child but is still in Ireland (26 counties)?
A16: An immediate application may be made to the Circuit or High Court for an injunction to prohibit the removal of the child and directing the active assistance of the local Gardaí and notification of the port authorities. Proceedings may also be brought to have the child made a ward of the Court.


Q17. Whose name appears on a child's birth certificate?
A17: Where a couple is married both names will appear on the certificate. A birth must, strictly speaking, be registered within 3 months.


Q18: What if the couple are not married and they wish to put the father's name on the certificate?
A18: If the mother is not married it is possible to register the child as the child of the natural father. The mother of a child born outside marriage may go with the father to the local registrar's office and both may sign the register or she may produce to the registrar a special form of declaration signed by the father or she may produce a Court Order naming the father as father of the child. If a birth has been registered without naming the father, the birth may be re-registered to show the father's name. If the mother is married to a person other than the child's natural father she requires a statutory declaration signed by her husband which states his consent to registration of the natural father as father, and confirming that he, the husband, is not the father of the child. In the event of the husband being unavailable or unwilling to sign a declaration the mother or natural father must get a Court order naming him as the father.


Q19: What rights does an unmarried father have regarding his child.
A19: An unmarried father can be appointed guardian of his child if the child's mother consents. The parents can in these circumstances agree between them the arrangements for custody and access. Otherwise he may apply to the Court:
(a) to become guardian of the child jointly with the mother. To do so he must prove he is the father of the child.
(b) for custody of the child.
(c) for access to the child.


Q20: What succession rights do children have if a parent dies without making a will?
A20: The surviving spouse is entitled to two-thirds of the estate and the children to the remainder. If there is no surviving spouse the entire estate is distributed among the children. A child whose parents are not married to each other now has the right to inherit from its father (Status of Children Act 1988). The child will share this right equally with any children of its parent's marriage(s).


Q21: Is a parent obliged to make provision for a child when making a will?
A21: No. However an application may be made by or on behalf of a child for a Court Order to provide for the child out of the estate. The Court will make such an order if it is of the opinion that the deceased parent has failed in his moral duty to make a proper provision for the child in accordance with his means, whether by will or otherwise.

Adoption: This whole area of adoption is vast and complex. Queries relating to it can be referred to one of the following:

Adoption Advice Service: Barnado's, Christchurch Square, Dublin 8. Tel: 453 0355.
Treoir: 36 Upper Rathmines Road, Dublin 6. Telephone: (01) 496 4155.