When entering into such a life-changing event as having a child, it’s helpful to be informed about all aspects of parenthood in order to limit unwelcome surprises along the road. In this article, we will explore some options for fathers in regards to their children.
In Ireland, unless a couple is married, the father has no automatic legal rights in regards to his child. He is legally obliged to financially maintain his child, but not necessarily entitled to care for his child. Many people assume that having a father’s name on the baby’s birth certificate grants him certain rights, however, it does not. Below, we will discuss how a father (or another family member) may obtain legal rights to a child.
A guardian is a person responsible for making the major decisions in the child’s life such as where the child lives, taking them out of the country, putting the child up for adoption, consenting to medical treatment and more. A guardian’s duty is to maintain and properly care for the child. A father can seek guardianship at any stage before the child is 18 years old.
Guardianship can be obtained through any of the following methods:
- An agreement with the mother – The mother and father can sign a declaration in the presence of a Peace Commissioner which grants the father joint guardianship. Once this form is signed and verified, it must be kept safe as this form is the only evidence that the father has been granted legal rights to his child.
- Cohabiting – A father who lives with the mother of his child for at least 12 consecutive months (3 of these months must be after the baby’s birth) will be granted guardianship of his child. If the mother lives with someone other than the father for more than 3 years and this person has shared responsibility for the child for at least 2 years, this person can apply for limited guardianship of the child.
- Marriage after birth – If the parents of a child get married, then the father is automatically a joint guardian of that child. If the mother marries someone other than the father of the child, her new spouse will not have legal rights to the child. The new spouse can apply for limited guardianship if they have shared responsibility for the day-to-day care and maintenance of the child for at least two years.
- Going to court – Fathers can apply to their local District Court to become a joint guardian of his child. The court will make the decision based on the best interest of the child in question. The mother of the child can have her say in the Court, however, she does not have a say in the final decision. If the court deems the father fit to be a guardian, then guardianship will be granted.
The person who has custody of a child is responsible for the day-to-day care of the child. If the parents of a child are not in a relationship they may make informal arrangements in regards to custody without the need for court intervention. However, if the parents cannot agree on custody, a formal custody agreement must be made by the Courts. In most cases, a Court will grant the mother custody, whereas the father will be granted a Right of Access. This is due to the fact that an unmarried mother has a superior legal position compared to the unmarried father. If the father is a guardian of his child, but not granted custody, he does not lose his legal rights to his child and must still be consulted in relation to the child’s welfare, where they live etc.
Access, in regards to a child, is contact between the child and a parent or other family whom the child does not live with. It can mean spending time with the child or just talking on the phone.
When the parents of a child do not live together they can make informal agreements regarding access. If they cannot agree on terms they must seek a formal agreement from the courts. It’s very unusual for a Court to deny the parent access. Courts may choose to grant a Supervised Access Order to allow the parent and child to see each other, but only while supervised by the child’s guardian or another appointed person.
Other family members such as Grandparents, Aunties, Uncles etc may also apply for an Access Order. This is useful when an extended family member is suddenly excluded from the child’s life after a relationship breakdown. The family member must first apply to the local District Court for permission to bring forth an application for access. When considering whether to allow the application for access, the Court will examine the applicant’s relationship with the child, any possible disruption which may be caused to the child’s life and the wishes of the child’s guardian.
Many conflicts which arise from a relationship breakdown or childcare disputes may be resolved through mediation. Mediation is a service where an independent third party (a mediator) helps a family to reach an agreement. This can be a cost-effective and efficient way to settle disagreements without the expense of going to Court. Mediation is less focused on who has rights to certain things, but more focused on which outcome benefits everyone. A mediator does not impose decisions upon your family in the way a Court would, they simply guide the family to their own mutually acceptable outcome. Your mediation session is confidential and cannot affect court proceedings if you still wish to pursue them afterwards. Written agreements made during your mediation session can be made a Rule of Court. This is the process of making your agreement legally binding. In order to be made a Rule of Court, your agreement must be fair, reasonable and protect the interest of the child.
*Always seek legal advice before undertaking any of the methods discussed.