Mangan & Company Solicitors

Children


Custody, Guardianship & Access

Custody essentially means the right to the physical care and control of a minor child being a child under the age of 18 years. 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.

Guardianship is the duty to maintain and properly care for a child and to have a right to make decisions about a child’s welfare.

Access refers to the time that a child or children spend with the parent who does not have the day to day care and control of the child and with whom the child does not primarily reside.

Custody can be held jointly by more than one person. Under Irish law married couples are automatically joint guardians and joint custodians of their children. Even after separation they will remain joint guardians, with the right to make decisions as to welfare matters relating to the children and their upbringing. After a marriage breaks down it is usual in the Irish Courts that the parents will remain joint custodians of the children, however a Court will decide which parent the children should primarily reside with on a day to day basis. The other parent will be awarded access which will be shorter periods of time with the children. Access can be weekly, fortnightly, monthly or in such other periods and includes holiday access.

By law, an unmarried mother is the sole guardian of a child born outside of marriage. Unless the mother agrees to sign a statutory declaration, an unmarried father must apply to the court in order to become a legal guardian of his child. It is not necessary for a father to have guardianship before he applies for access or custody.

Child Maintenance

There is a legal responsibility in Ireland on parents, whether married or unmarried, to maintain dependent children in accordance with their means. Maintenance can be paid periodically (i.e., weekly or monthly) or in a lump sum. In Ireland, paying maintenance does not in itself give a parent access or guardianship rights.

In situations where parents are separated, they can make informal agreements regarding maintenance. This can work well where both parties are reasonable and fair - but it is difficult to assess informally how much maintenance should be paid. If parents find it difficult to come to an arrangement which satisfies both parties, they may find that mediation can help. Alternatively, each side can engage their own legal advice who will act as negotiator of an agreement. Both parties can then sign this agreement which can later be made a rule of court. A rule of court means that these agreements have the same effect as a maintenance order. Informal agreements can include a property transfer or a lump sum payment but it cannot rule out the possibility of applying for a maintenance order through the courts in the future.

If the parties cannot agree upon maintenance, either party can apply to court for a maintenance order. An application for maintenance can be brought either in the District or Circuit Court. Each party must disclose their finances to the court and the judge will consider the needs of the child/children taking into account all of the family's circumstances when making a maintenance order.

Relocation

As a general rule, one parent is not allowed to remove a child/children from Ireland and relocate to another country without the consent of the other parent. However, if one parent is withholding their consent the other parent may apply to court looking to relocate or remove a child/children to another jurisdiction. In these cases the court will determine the matter based on the best interests principle. The court will consider the best interests of the child pragmatically as well as taking account of various factors which were established as law in previous cases. The court will require information on the arrangements which have been made for the children in the proposed new location, particularly with respect to living arrangements, education arrangements, the availability of support networks as well as the proposals for on-going contact with the parent who is remaining in Ireland.

If one parent does move to another country without the consent of the other this may constitute child abduction. Ireland is a signatory to the Hague Convention on Child Abduction. Under this convention if one parent abducts a child and brings the child to another country that is also a signatory to the convention then the Irish authorities can contact their counterparts in the other country and the other state will bring proceedings in that country against the parent to force them to bring the child back to Ireland. If a child has been abducted, the parent seeking the return of the child should contact the Department of Justice.

If a parent is concerned that the other parent is about to take a child from the jurisdiction of Ireland, there are applications that can be made in the District Court, Circuit Court or High Court for various orders in relation to custody, passports etc to prevent the child leaving. In the case of unmarried parents, if a father is not a guardian and has not applied to be a guardian he may be in a weaker position with regard to preventing a mother leaving the country.