Custody of children and cohabiting couples

Rules

By law, an unmarried mother is the sole guardian of a child born outside of marriage. Unless the mother agrees to sign a statutory declaration, an unmarried father must apply to the court in order to become a legal guardian of his child. It is not necessary for a father to have guardianship before he applies for access or custody.

Court decision

In general, the courts tend to consider that where the parents of the child are unmarried, it is in the child's best interests to live with its mother. The unmarried mother has a superior legal position to the unmarried father and will usually be granted custody. However, the courts will usually grant a right of access to the unmarried father so that he can have regular contact with his child.

As part of the decion-making process, the court will consider the moral example given by a parent to his or her child, the influence that parent's behaviour may have on the child's development and the manner in which the parent's conduct is likely to affect the child's welfare.

The current legislation on guardianship and custody of children in Ireland does not prevent a parent who has entered into a same-sex relationship from having custody of a child. However, if there is a dispute between the parents it is up to the court to decide, and a court could hold that the parent's involvement in a same-sex relationship could affect the child's welfare.

It is not uncommon for a judge to place restrictions on access where one parent has a new relationship. This is done on the basis that introducing a new partner to a child can be a delicate matter. The court may require, (or you might want to present), a psychological assessment carried out by a child psychiatrist or psychologist. Legal aid may pay for this assessment. Usually where professional opinions are sought by the court, it will be greatly influenced by the conclusions of the professional.

Child placed for adoption

If the unmarried mother does not want custody of the child and intends placing it or has already placed it for adoption, the unmarried father may still apply for custody of the child. The essential issue for the court in deciding whether the father should have custody will be the welfare of the child. The length of time that the child has been with the adoptive parents will be a very important factor.

Appealing a decision

It's important to remember that decisions regarding custody, access and maintenance of children are always open to review if circumstances change. You can also appeal against decisions of the initial court if you are dissatisfied with the result.