Custody of children and cohabiting couples
Custody is the right to the physical care and control of a child. When the unmarried parents of a child separate and they cannot agree on who should have custody of the child, the court may have to decide.
When the court is making its decision about who should have custody of the child, the most important factor for it is the welfare of the child. Welfare includes the child's religious, moral, intellectual, physical and social welfare.
An unmarried mother is automatically the sole guardian of a child born outside of marriage and has sole custody. However, it is not necessary for the father to have guardianship before he applies for access or custody. The father can apply for joint or sole custody.
On 18 January 2016 certain provisions of the Children and Family Relationships Act 2015 came into effect amending the Guardianship of Infants Act 1964. The changes allow for certain other people to apply to the court for custody:
- A relative of the child
- A parent's spouse, civil partner or cohabitant (for at least 3 years) with whom the child resides and where they shared parenting of the child for at least 2 years
- A person with whom the child resides, if they have provided the child's day-to-day care for at least a year and there is no parent or guardian willing or able to exercise the powers and responsibilities of guardianship
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.
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.
The court can impose an enforcement order if you have been been unreasonably denied the custody the court granted you. This may include:
- You getting compensatory time with the child
- Your expenses being reimbursed
- One or both of you attending parenting programmes, family counselling or receiving information on mediation
How to apply
Legal advice and representation is always advisable. Contact information for solicitors firms throughout Ireland is available on the Law Society website.
To enquire whether you are eligible for Legal Aid, contact your nearest law centre. The law centre staff will assess your means and advise on financial eligibility. Legal Aid is not free and everyone must pay a contribution towards costs.
Download an application form for Legal Services (pdf) and bring this with you to your nearest law centre.
FLAC (Free Legal Advice Centres) 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. FLAC also runs an information and referral line during office hours for basic legal information.
FLAC has produced a series of basic leaflets on various areas of law which may be useful. These are available from your local Citizens Information Centre and from FLAC or can be downloaded from the FLAC website.
The Family Mediation Service can enable couples who have decided to separate to negotiate their own terms of agreement, while addressing the needs and interests of all involved. The service is free. Read more about the Family Mediation Service here.
Treoir, the National Information Centre for Unmarried Parents, provides information on access and custody on its website.