Legal guardianship and cohabiting couples
If you are a guardian of a child in Ireland, you have a duty to maintain and properly care for the child and you have a right to make decisions about the child's religious and secular education, health requirements and general welfare.
Married parents of a child are joint guardians and have equal rights in relation to the child. The rights of parents to guardianship are set down in Section 6 of the Guardianship of Infants Act, 1964.
For children born outside of marriage, only the mother has automatic rights to guardianship. (Even though a father's name may be registered on the child's birth certificate, this does not give him any guardianship rights in respect of his child).
If a child is born outside of marriage, the mother is the sole guardian. The position of the unmarried father of the child is not so certain. An unmarried father will automatically be a guardian if he has lived with the child's mother for 12 consecutive months after 18 January 2016, including at least 3 months with the mother and child following the child's birth. If there is disagreement as to whether they have been cohabiting for the required length of time, an application for the necessary declaration can be made to the court.
Guardianship by agreement
If the mother agrees, the father can become a joint guardian if both parents sign a statutory declaration. The statutory declaration (SI 5 of 1998) must be signed in the presence of a Peace Commissioner or a Commissioner for Oaths. A copy of the statutory declaration (pdf) is available from the National Information Service of Treoir (see below) or on its website.
This declaration states the names of the parents of the child, that they are unmarried and that they agree that the father should be appointed as a joint-guardian. The declaration also states that the parents have agreed arrangements regarding custody of and access to the child. If there is more than one child, a separate statutory declaration should be made for each.
Guardianship through the courts
If the mother does not agree to sign the statutory declaration or agree that the father be appointed as joint guardian, the father must apply to the court to be appointed as a joint-guardian. You do not require legal representation to do this, you can make the application on your own behalf. Apply directly to the District Court and contact the clerk of the court to institute proceedings. (This is possible, irrespective of whether your name is on the child's birth certificate or not).
While the mother's views are taken into account, the fact that she does not consent to the guardianship application does not automatically mean that the court will refuse the order sought by the father. Instead, the court will decide what is in the best interest of the child.
In situations where the father has been appointed joint guardian of a child, then his consent is required for certain things relating to the child's general welfare and other items. (For example, for passport applications for the child and to take the child out of the country). Read more about passports for children of unmarried parents here (pdf). The father's consent is also required for the adoption of the child by another couple (or by the mother and her husband). Read more about adoption here.
As well as fathers, certain other people may apply to the court for guardianship:
- A step-parent, a civil partner or a person who has cohabited with a parent for not less than 3 years may apply to the court to become a guardian where they have co-parented the child for more than 2 years.
- A person who has provided for the child’s day-to-day care for a continuous period of more than a year may apply for guardianship if the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship.
Also a parent can nominate a temporary guardian who can be appointed by the court if the parent is suffering from a serious illness or injury which prevents them from exercising their guardianship responsibilities in respect of their child.
If the court appoints a guardian to a child where one or both parents are alive, the guardian will not generally have the right to make certain major decisions about the child unless that right is expressly granted by the court.
Removal of guardianship rights
Fathers and others who have been appointed joint guardians by a court or by statutory declaration can be removed from their position if the court is satisfied it is in the child's best interest. The only way a mother can give up her guardianship rights in Ireland, is if the child is placed for adoption.
Marriage after the child is born
If the parents of a child marry each other after the birth, then the father automatically becomes a joint guardian of the child (provided that the father's name is on the birth certificate). There is, therefore, no need to apply for guardianship rights nor is there any need for the father to adopt the child.
Where the father is joint guardian and the mother subsequently marries another man or enters into a civil partnership, the father will remain the joint guardian of his child. If the mother and her husband wish to adopt the child, they must seek consent from the child's father. If the child's father consents to the adoption, then he gives up his right to guardianship of his child.
The issue of guardianship may arise if one of you has a child. You may have guardianship rights in relation to your child and you may wish your same-sex partner to also have guardianship rights. As mentioned above, it is possible for your partner to apply to become a guardian of the child.
It is not possible for you and your same-sex partner to jointly adopt a child, even if one of you is the birth parent of the child. While the Children and Family Relationships Act 2015 provides for cohabiting couples, including same-sex couples, to adopt a child, the provisions are not yet in effect.
Guardians and wills
It's very important if you are the guardian of a child (especially if you are a mother and sole guardian) that you make a will, appointing a guardian to act on your behalf in the event of your death. It's strongly advised that you talk this over with someone who could act as guardian and that he/she gives his/her consent to being named in your will as testamentary guardian.
The child's surviving guardian (if there is one) will then act jointly with the new guardian. Read more about making a will and what you need to know here.
You do not require legal representation in order to apply for guardianship of your child. Staff in your local district court will provide you with assistance to help guide you through the process.
If you go to a family law solicitor, you will have to pay solicitors' fees. You should be aware that solicitors' fees in Ireland are not fixed and can vary considerably. Shop around and obtain some quotes before you decide on a legal firm. Be aware however, that your solicitor must explain all of the costs to you in advance.
If you are eligible for legal aid, you must pay a contribution towards costs.
How to apply
The Courts Service has information on apply for guardianship on its website. Contact the staff in your local district court for more information on how to apply for guardianship.
If you would prefer to seek legal advice, contact a solicitor.
Contact information for solicitors firms throughout Ireland is available on the Law Society website.
Treoir, the National Information Centre for Unmarried Parents, provides information for unmarried parents. It has some useful information on a variety of topics on its website, including:
- Shared parenting for unmarried parents
- Access and custody
- Unmarried fathers rights and responsibilities in respect of their children
FLAC (Free Legal Advice Centres) is an independent, voluntary organisation that operates a network of legal advice clinics throughout the country. These clinics are confidential, free of charge and open to all. Contact your nearest Citizens Information Centre for information on FLAC services in your area. FLAC also runs an information and referral line during office hours for basic legal information.
FLAC has produced a series of basic leaflets on various areas of law which may be useful. These are available from your local Citizens Information Centre and from FLAC or can be downloaded from the FLAC website.
The Family Mediation Service can enable couples who have decided to separate to negotiate their own terms of agreement, while addressing the needs and interests of all involved. The service is free. Read more about the Family Mediation Service here.
Family Mediation Service
9 Lower Ormond Quay
Tel:+353 (0)1 874 7446
Fax:+353 (0)1 874 7449
Email: [email protected]