Legal advice with Karen Walsh: Guardianship it isn’t automatic
My partner and I have been together for two years.
We are unmarried, we moved in together to the house I built on my father’s land late last year.
Recently, she gave birth to our first child, a baby boy.
I always assumed that I would have automatic rights towards my son, but my brother recently mentioned in conversation that I might have to apply for guardianship to the courts, in order to give me legal standing.
I was registered as his father on his birth certificate, at the time of his birth, and his mother and I are living together, and raising him together. What is the current legal position in Ireland in respect of unmarried couples and guardianship?
Do I have any legal rights in respect of my son?
What rights would a guardianship application entitle me to? Is it necessary to make a court application to give effect to any rights I might have?
My partner and I are due to marry next summer.
Would this change anything in respect of Guardianship? I would welcome any advice you have on this matter.
Congratulations on the birth of your son.
Guardianship rights refers to a collection of rights and duties that a parent or non-parent guardian has in respect of a child. These would include such rights as consenting to medical treatment, applying for passports, decisions about leaving the country, and various other matters involving the welfare of the child in question.
Your brother is correct that under the traditional standing in the Irish Republic, unmarried fathers did not have any automatic legal rights in respect of their children.
However, the Children and Family Relationships Act, 2015 makes some changes to the traditional law especially in this area. As it currently stands, an unmarried father will automatically be named as a guardian of his child, if he has lived with the child’s mother for 12 months after the coming into force of the 2015 Act, on January 18, 2016.
These 12 months must be consecutive, and it must also include three months of living with your child and your child’s mother after the child’s birth. If it transpires that there is disagreement as to whether the father and mother have been cohabiting for the length of time mandated for the law in order for automatic guardianship to occur, then an application can be made to the courts, and guardianship can be enforced in this way.
Joint guardianship can also be put into force, by mutual agreement between the mother and the father.
A statutory declaration would need to be signed by the mother and the father, stating that they are unmarried, and they are in agreement that the father should be appointed as joint guardian for the child in question.
This declaration should also confirm that the parents have agreed arrangements in respect of custody and access to the child. This statutory declaration must be sworn in front of a Peace Commissioner, a Commissioner for Oaths, or a practising solicitor.
As your brother mentioned, an application can also be processed through the courts by an unmarried father.
This step is only necessary if the mother of the child refuses to sign the statutory declaration in respect of joint guardianship. It is not necessary to instruct a solicitor to undertake to do this on your behalf, as an application can be made directly by yourself to the District Court. While the mother’s views are taken into account by the court in deciding the application, the court will proceed to do what it views as being in the best interests of the child.
If you and your partner marry next summer, you will automatically become a joint guardian of your son upon marriage as your name appears on his birth certificate.
You would not be automatically entitled to joint guardianship if your name was not recorded on his birth certificate.
Recently, the Joint Committee on Justice and Equality recommended that the Government give serious consideration to granting automatic guardianship rights to all unmarried fathers, as they feel this can exacerbate family law conflict in Ireland, and ignores the reality of modern day life.
If the Government heeds these calls for change, we may see possible reform in this area in the future.
