Guardianship status of fathers
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 of the Guardianship of Infants Act 1964 as amended. 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.
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 5/1998) 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.
The Children and Family Relationships Act 2015 provided for a number of changes to the Guardianship of Infants Act 1964. For example, 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.
Applying to the court for guardianship
If the mother does not agree for the father to have guardianship, he may apply for guardianship to the District Court.
As well as fathers, certain other people may apply to the court for guardianship:
- 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.
Also a parent can nominate a temporary guardian who can be appointed by the court if the parent is suffering from a serious illness or injury which prevents them from exercising their guardianship responsibilities in respect of their child.
A father appointed as guardian by the court may be removed as guardian at a future date whereas a father married to the mother of the child is normally guardian for life.