Separation and divorce: children
Guardianship describes the legal responsibility of parents to make decisions and perform duties in relation to their child's upbringing. Married parents are automatically joint guardians of their children. Neither separation nor divorce changes this. (A father who is not married to the mother of his child does not have automatic guardianship rights in relation to that child. You can read more in our document about the guardianship status of fathers).
Custody refers to the day-to-day care, residency and upbringing of children who are regarded as dependent children. Dependent children in custody matters are children who are under the age of 18. In cases of judicial separation or divorce, one parent is usually granted custody. The children reside permanently with the parent who has custody and the other parent is granted access to the children at agreed times, which can include overnight access. It is possible for parents to continue to have joint custody of their children after separation or divorce and for the children to spend an equal amount of time with each parent if the parents can agree and arrange this.
Access refers to the right of a child to maintain direct contact with the parent with whom the child does not reside. It can include the child staying overnight either occasionally, on alternate weekends or during school holidays and for the parent and child going on holidays together.
The parents may agree informally between themselves the arrangements for custody and access to the child.
In the event that agreement cannot be reached, either parent may make an application to the court to decide which parent will have custody of the child and what access the non-custodial parent will have. The application can be made to the District Court or can be made in an application for judicial separation or divorce in the Circuit Court.
In any application for custody or access, it is the welfare of the child that is the most important factor that a court will consider. It is a child's right to see both parents and access by the non-custodial parent will only be denied if the court believes that it is not in the best interest of the child. The court can set out the time, place and duration of access visits and can order supervised access where another adult is present during visits if it considers it appropriate.
How to apply
A person seeking an access order can go to their local District Court and get the Court Clerk to issue an application for access, which will be served on the other spouse. Legal advice and representation is always advisable.
To enquire whether you are eligible for legal aid contact the Legal Aid Board who will send you a list of law centres throughout the country and you should then contract the centre in your area.
Where to apply