Guardianship concerns a number of rights and responsibilities that automatically vest in the parents of a child born within marriage and in the mother of a child born outside marriage. These rights and responsibilities are in relation to the upbringing of that child. A guardian of a child has the right and the responsibility to make all major decisions affecting that child’s upbringing relating to education, medical treatment, adoption, religion and international travel.
Guardianship rights in Ireland
As indicated, where the parents are married, both parents are automatically joint guardians of their child. However, where the parents are not married the mother is the sole guardian of the child and the fact that the father’s name is on the Register of Births does not automatically give him guardianship rights in respect of the child. The father of a child born outside marriage can become a guardian of his child by Court Order or upon marrying his child’s mother.
As regards the practicalities of an unmarried father acquiring guardianship, one of the following matters would have to occur:
- If both parents are in agreement that the father can become a joint guardian then it is possible to complete a Statutory Declaration confirming this in the presence of a Peace Commission or a Commissioner for Oaths. Upon swearing of this declaration the father of the child is then recognised as a guardian of the child.
- In situations where the mother does not agree to the father becoming the child’s guardian, it is open to the father to apply to the relevant District Court in order to be appointed joint guardian with the mother. The father’s name does not have to be on the Register of Births and the application for guardianship is made under the Guardianship of Infants Act 1964. The father of any child concerned in relation to the issue of guardianship can apply himself to the District Court or can engage the services of a Solicitor to make the application for him.
In some situations the mother of a child will not consent to the father becoming a guardian and certainly this is not a bar to a Court refusing an application for guardianship. In all cases concerning children the Court must make its decision based on the child’s best interests which are always the first and paramount consideration. This means that in making any decision the Court must keep the child’s best interests and needs to the fore and if a Court feels that it is in the child’s best interest for the father to become a guardian a father’s application will be successful.
It is also important to note that a father who has been appointed a guardian can also be removed by a Court if it is the Court’s opinion at a later date that the child’s best interests are served by removing guardianship from the father.
Guardianship Rights for Unmarried Fathers – Legal Grounds
As guardianship involves a duty to maintain and properly care for a child and also involves the right to make decisions about a child’s education, religion, health requirements and general welfare, it is very important for any father of a child who is not married to the mother of the child to ensure he becomes guardian of that child as soon as possible after the child’s birth. If a father is not appointed a guardian of his child he will have little say or influence in the child’s upbringing and may be left out of some of the very important decisions concerning his child.
It is also important to note that if the mother of a child marries someone other than the father, the father does remain a guardian of the child and the stepfather of the child will not be in a position to adopt the child without the father’s consent to that adoption.
Is it finally important to note that all parents who are guardians, and in particular those who are sole guardians, have the right to make a will appointing a person who will act as the child’s guardian in the event of their death. This is a very important step to take especially for sole guardians of children and it is always advisable to consult the person who you would wish to act for you if you were to die and to make sure that they consent to do so. The person appointed by your will to act as the child’s guardian is known as a testamentary guardian.
Where joint guardians cannot reach an agreement in relation to issues concerning their child then an application can be made to the relevant District Court seeking clarification or orders in relation to the child’s best interest. It is always important to consult with a family law Solicitor in relation to contentious applications before the Courts.
by Maurice O’Connor