Legal guardianship and cohabiting couples

Introduction

If you are a guardian of a child in Ireland, you have a duty to maintain and properly care for the child and you have a right to make decisions about the child's religious and secular education, health requirements and general welfare.

Married parents of a child are joint guardians and have equal rights in relation to the child. The rights of parents to guardianship are set down in Section 6 of the Guardianship of Infants Act, 1964.

For children born outside of marriage, only the mother has an automatic right to guardianship. (Even though a father's name may be registered on the child's birth certificate, this does not give him any guardianship rights in respect of his child).

On 18 January 2016 certain provisions of the Children and Family Relationships Act 2015 came into effect that made a number of changes to the Guardianship of Infants Act 1964.

Family law and COVID-19

Our document COVID-19 and family law has up to date information about family law matters during the COVID-19 emergency period.

Automatic guardianship

If a child is born outside of marriage, the mother is the automatic guardian. The position of the unmarried father of the child is not as certain. An unmarried father will automatically be a guardian if he has lived with the child's mother for 12 consecutive months after 18 January 2016, including at least 3 months with the mother and child following the child's birth. If there is disagreement as to whether they have been cohabiting for the required length of time, an application for the necessary declaration can be made to the court.

Marriage between parents after the child is born

If the parents of a child marry each other after the birth, then the father automatically becomes a joint guardian of the child (provided that the father's name is on the birth certificate). There is, therefore, no need to apply for guardianship rights nor is there any need for the father to adopt the child.

Guardianship by agreement

If the mother agrees, the father can become a joint guardian if both parents sign a statutory declaration. The statutory declaration (SI 210 of 2020) (pdf) must be signed in the presence of a Notary Public, Peace Commissioner or a Commissioner for Oaths or a registrar of a civil registration service authorised to take and receive statutory declarations.

This declaration states the names of the parents of the child, that they are unmarried and that they agree that the father should be appointed as a joint guardian. If there is more than one child, a separate statutory declaration should be made for each.

SI 210 of 2020 also provides a statutory declaration form (pdf) for a mother and second parent to become joint guardians by agreement of a child born as a result of a donor-assisted human reproduction procedure.

Guardianship through the courts

Unmarried fathers

If the mother does not agree to sign the statutory declaration or agree that the father be appointed as joint guardian, the father must apply to the court to be appointed as a joint guardian. You do not require legal representation to do this, you can make the application on your own behalf. Apply directly to the District Court and contact the clerk of the court to institute proceedings. (This is possible, irrespective of whether your name is on the child's birth certificate or not).

While the mother's views are taken into account, the fact that she does not consent to the guardianship application does not automatically mean that the court will refuse the order sought by the father. Instead, the court will decide what is in the best interest of the child.

In situations where the father has been appointed joint guardian of a child, then his consent is required for certain things relating to the child's general welfare and other items. (For example, for passport applications for the child and to take the child out of the country). Read more about passports for children of unmarried parents here (pdf). The father's consent is also required for the adoption of the child by another couple (or by the mother and her husband). Read more about adoption here.

Legal guardianship applications after changes in relationship status of the parents

Where a parent is joint guardian and the subsequently marries, enters into a civil partnership or becomes a qualified cohabitant, the other guardian will remain the joint guardian of the child.

It is possible though for the new spouse/partner/qualified cohabitant to apply to court to become a guardian without adopting the child. To do so, the spouse/partner/qualified cohabitant must have either:

  • Shared the parental responsibility for the day-to-day care of the child with the parent they live with for at least 2 years; or
  • Provided the child’s day-to-day care for at least 1 year where the child has no parent or guardian willing or able to exercise their guardianship rights, for example, a foster parent

The application must be notified to all other parents or guardians of the child, although the decision will not affect that parent or guardian’s existing rights in relation to the child. In deciding whether or not to allow the guardianship application, the court will consider the degree to which any other guardians are involved in the child’s upbringing and any views of child or children involved. If guardianship is granted, the new guardian’s rights will be set out in the court’s order and may not be as extensive as the rights of the other guardians.

Alternatively, the parent and their new spouse/partner/qualified cohabitant may wish to adopt the child. To do so, they must seek consent from the child's other guardian. If the child's other guardian consents to the adoption, then he or she gives up the right to guardianship and parentage of the child.

Temporary guardianship

Temporary guardianship can be granted by the District Court to allow another adult, known as the nominated person, to care for your child or children if you become seriously unwell or need be hospitalised. The nominated person must be a suitable person and over 18 years old.

You need to complete a special form to nominate a temporary guardian (pdf), in which you can set out your wishes on any limitations on the temporary guardian. The nominated person must then apply to the court if you cannot carry out your parental role due to serious illness. The scope of temporary guardian’s rights will be set out in the District Court’s Order, which will usually be identical to the wishes you set out in the form.

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.

Removal of guardianship rights

Fathers and others who have been appointed joint guardians by a court or by statutory declaration can be removed from their position if the court is satisfied it is in the child's best interest. The only way a mother can give up her guardianship rights in Ireland, is if the child is placed for adoption.

Guardians and wills

It's very important if you are the guardian of a child (especially if you are a sole guardian) that you make a will, appointing a guardian to act on your behalf in the event of your death. It's strongly advised that you talk this over with someone who could act as guardian and that they give their consent to being named in your will as testamentary guardian.

The child's surviving guardian (if there is one) will then act jointly with the new guardian. Read more in our document about making a will.

Rates

You do not require legal representation in order to apply for guardianship of your child. Staff in your local District Court will provide you with assistance to help guide you through the process.

If you go to a family law solicitor, you will have to pay solicitors' fees. You should be aware that solicitors' fees in Ireland are not fixed and can vary considerably. Shop around and obtain some quotes before you decide on a legal firm. Be aware however, that your solicitor must explain all of the costs to you in advance.

Contact information for solicitors and law firms throughout Ireland is available on the Law Society of Ireland's website.

If you are eligible for legal aid, you must pay a contribution towards costs.

How to apply

The Courts Service has information on applying for guardianship on its website. Contact the staff in your local District Court for more information on how to apply for guardianship.

If you would prefer to seek legal advice, contact a solicitor.

Contact your nearest law centre for information on Legal Aid. Information is also available from the Legal Aid Board.

Further information

Treoir provides specialist information on legal, social welfare and parenting issues for unmarried parents. It has information on a variety of topics on its website, including:

Treoir

28 North Great Georges Street
Dublin 1
Ireland

Tel: +353 (0)1 670 0120

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 phone line during office hours for basic legal information.

FLAC has a wide range of information and resources on different topics of law which may be useful. These are available from your local Citizens Information Centre and from the FLAC website.

Free Legal Advice Centre

85/86 Upper Dorset Street
Dublin 1
D01 P9Y3
Ireland

Tel: +353 (0)1 874 5690
Locall: 1890 350 250

The Family Mediation Service can help couples who have decided to separate to negotiate their own terms of agreement, while considering the needs and interests of all involved. The service is free. Read more in our document about the Family Mediation Service.

Family Mediation Service

4th Floor
Jervis House
Jervis Street
Dublin 1
D01 E3W9
Ireland

Tel: +353 (0)1 874 7446

Page edited: 19 June 2020