Separation and divorce: children
The breakdown of a marriage or relationship can be a difficult and traumatic process, particularly where children are involved. It changes the family structure and can reduce the daily presence and availability of one parent. It is important to support your children’s well-being and rights throughout the process, to help them adjust to the separation or divorce.
Some children will need extra support to deal with the emotional impact of the change and sense of loss. Parents and children dealing with relationship breakdown can get support from:
If you have decided to separate or divorce and children are involved, you will need to consider certain issues such as guardianship, custody, access and child maintenance.
Guardianship is where parents have the legal responsibility to make decisions on behalf of their child 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.
However, 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 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. In custody matters, dependent children are children who are under the age of 18. In cases of judicial separation or divorce, one parent is usually granted custody. The children live 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). Read more about access below.
It is possible for parents to continue having 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 your child's right to have direct contact with the parent they do not live with. It can include the child staying overnight either occasionally, on alternate weekends or during school holidays. It can also include the parent and child going on holidays together.
The parents may informally agree between themselves the arrangements for custody and access to the child.
If an agreement cannot be reached, either parent may apply to the court to decide which parent will have custody of the child and what access the non-custodial parent will have. You can make an application to the District Court, or can apply for judicial separation or divorce in the Circuit Court.
In an application for custody or access, the child’s welfare is the most important factor the court will consider. Your child has a right to see both parents, and access by the non-custodial parent will only be denied if the court believes it is not in the best interest of the child. The court can set out the time, place and duration of access visits. The court can also order supervised access where another adult is present during visits, if it considers it appropriate.
If you want to get an access order, you can go to your local District Court and get the Court Clerk to issue an application for access, which will be served on the other spouse. You are advised to get legal advice and representation for this process.
There is a legal responsibility on parents, whether married or unmarried, to maintain dependent children in accordance with their means. A dependent child is a child who is under the age of 18, or 23 if they are in full-time education. Maintenance can be paid periodically (for example, weekly, fortnightly or monthly) or in a lump sum. Paying maintenance does not give a parent access or guardianship rights.
Child maintenance can be a private arrangement between you and the other parent, or if you can't come to an agreement, either person can apply to the court for a maintenance order.
Get help agreeing
Family mediation can help you and your ex-partner agree on child arrangements. A mediator is independent and does not take sides.
Mediation is not relationship counselling. If you know there is no possibility of reconciliation, mediation can help you agree on the details of how you’ll look after your children, such as:
- Where they live
- When they spend time with each parent
- When and what other types of contact take place (phone calls, for example)
- Child maintenance payments
Mediation allows you and your ex-partner to make your own decisions, rather than going to court and having a judge make them for you. Mediation can be an effective, cheaper and quicker alternative to court.
At the end of mediation, you will get a document showing what you agreed. This agreement is not legally binding. The mediated agreement is not a legal agreement, however, you can bring this document to a solicitor to be drawn into a legal contract or deed of separation. You may also use it as the basis for a decree of divorce.
You can read more about family mediation for separating couples. You can also find more details on what mediation is and how it works in Mediation for separating couples (pdf), published by the Mediators’ Institute of Ireland.
Going to court
If you cannot agree on your child arrangements, you can apply to the court for the court to decide. Your child’s welfare is the most important factor the court will consider.
Some family law issues are resolved without legal representation but it is always recommended you get legal advice. A solicitor who specialises in family law can help you by explaining the process and your options. Find contact information for solicitors throughout Ireland on the Law Society website.
You can also:
- Find out about case progression (the management of your case before the actual hearing)
- Watch a video on how to prepare for your family law hearing, and
- Watch a video on what happens on the day you attend the family court
The Family Mediation Service offers a free mediation service that helps separating couples co-operate with each other in working out mutually acceptable arrangements. The Family Mediation Service is provided by the Legal Aid Board.
The Mediators' Institute of Ireland provides a list of private accredited mediators. Private mediators charge in a variety of ways (daily rate/hourly rate/flat rate).
Legal aid and advice is available from the Legal Aid Board in family law cases to people who satisfy a means test. The Legal Aid and Advice Service operates out of law centres staffed by qualified solicitors.FLAC
is an independent, voluntary organisation that operates a network of legal advice clinics throughout the country. These clinics are confidential, free of charge and open to all. Contact your nearest Citizens Information Centre for information on FLAC services in your area.