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Guardianship status of fathers

Introduction

All mothers, irrespective of whether they are married or unmarried, have automatic guardianship status in relation to their children, unless they give the child up for adoption. A father who is married to the mother of his child also has automatic guardianship rights in relation to that child. This applies even if the couple married after the birth of the child. The rights of parents to guardianship are set down in Section 6 the Guardianship of Infants Act 1964. Guardianship rights entitle a parent to make important decisions regarding that child's upbringing, for example, deciding on the child's religion, education, medical treatment and where he/she lives.

However, a father who is not married to the mother of his child does not have automatic guardianship rights in relation to that child. If the mother agrees for him to be legally appointed guardian, they must sign a joint statutory declaration. The statutory declaration (SI 5 of 1998) must be signed in the presence of a Peace Commissioner or a Commissioner for Oaths. If there is more than one child, a separate statutory declaration should be made for each.

If the mother does not agree for him to have guardianship, he may apply for this status to the District Court.

However, he may be removed as guardian at a future date whereas a father married to the mother of the child is normally guardian for life.

Legislative changes

The Children and Family Relationships Act 2015 provides for a number of changes to the Guardianship of Infants Act 1964. These changes have not yet come into effect. The changes include:

  • 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.
  • An unmarried father will automatically be a guardian if he has lived with the child's mother for 12 consecutive months, including at least 3 months with the mother and child following the child's birth. The period of cohabitation can take place at any time before the child turns 18 years old.
  • A new arrangement will be put in place whereby unmarried parents may sign the joint statutory declaration when registering or re-registering the child's birth.
  • 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.
  • A temporary guardian can be appointed if the parent is suffering from a serious illness or injury which prevents them from exercising guardianship responsibilities in respect of the child.
Page edited: 22 May 2015

Language

Gaeilge

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