Guardianship and cohabiting couples
- Introduction
- Automatic guardianship
- Guardianship by agreement
- Testamentary guardianship
- Guardianship decided by the courts
- Removal of guardianship rights
- How to apply for guardianship
- Further information
Introduction
If you are a guardian of a child in Ireland, you have a legal responsibility to maintain and properly care for the child. You also have the right to make decisions about the child's religious upbringing, their education, consent to medical treatment and their general welfare.
You can apply for guardianship up until a child reaches 18 years of age. Guardianship ends when a child turns 18 unless a guardian dies or is removed before that.
Guardianship can be:
- Automatic guardianship
- Guardianship by agreement
- Testamentary guardianship
- Guardianship decided by the court
The rights of parents to guardianship are set out in Section 6 of the Guardianship of Infants Act, 1964.
Automatic guardianship
Married parents of a child, including an adopted child, have automatic guardianship of their children. This means they do not have to apply to court for guardianship. They are joint guardians. This applies whether the couple marry before or after the child's birth. Separation or divorce does not change this automatic right.
If the biological parents of a child marry each other after the birth, then the father automatically becomes a joint guardian of the child. There is, therefore, no need to apply for guardianship rights nor is there any need for the father to adopt the child.
For children born to parents that are not married to each other, only the mother has an automatic right to guardianship. Even if a father's name is registered on the child's birth certificate, this does not give him any guardianship rights in respect of the child.
However, an unmarried parent will automatically be a guardian if they have lived with the child's mother for 12 months in a row, including at least 3 months with the mother and child following the child's birth.
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.
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 form should be completed for every child.
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.
Testamentary guardianship
A guardian of a child (especially if you are a sole guardian) should make a will, appointing a testamentary guardian to act on your behalf in the event of your death. It is 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. A surviving guardian can apply to have the appointment of a testamentary guardian revoked. Read more in our document about making a will.
Guardianship decided by the courts
The father has automatic joint guardianship if he has lived with the child's mother for 12 consecutive months including at least 3 months with the mother and child following the child's birth. If the mother disputes the amount of time spent cohabiting or does not agree to sign the statutory declaration, the other parent 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. Most court applications are made to the District Court. They can also be made to the Circuit Court as part of an application for judicial separation or divorce.
Even if the mother does not consent to the guardianship application, it does not automatically mean that the court will refuse the order sought by the other parent. The court will decide what is in the best interest of the child and the parents.
Legal guardianship applications after changes in relationship status of the parents
Where a parent is joint guardian and then subsequently marries or becomes a qualified cohabitant, the other guardian will remain the joint guardian of the child.
It is possible though for the step-parent or a person who has lived with the parent for a minimum of 3 years (qualified cohabitant) to apply to court to become a guardian. To do this, the step-parent or qualified cohabitant must have shared the parental responsibility for the day-to-day care of the child with the parent they live with for at least 2 years
If a child has no parent or guardian who is willing or able to exercise the rights and responsibilities of a guardian, someone who has provided for the child’s day-to-day care for a continuous period of more than 1 year may also apply for guardianship, for example, a foster parent.
An application for guardianship 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 how much 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. These 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 this, 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 given 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 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. Exactly what the temporary guardian’s rights are 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.
How to apply for guardianship
You do not require legal representation 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.
The Courts Service has information on the steps for applying for guardianship on its website. Contact the staff in your local District Court for more information on the process of making an application for guardianship.
If you would prefer to seek legal advice, contact a solicitor. 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.
Contact your nearest law centre for information on legal aid. Information is also available from the Legal Aid Board. If you are eligible for legal aid, you must pay a contribution towards costs.
Further information
Treoir provides specialist information on legal, social welfare and parenting issues for unmarried parents. It has more information on its website, including:
FLAC (Free Legal Advice Centres) is an independent, voluntary organisation. A limited number of FLAC phone clinic appointments are offered in conjunction with Citizen Information Services around the country. These appointments are with a volunteer lawyer and are confidential and free of charge. Contact your nearest Citizens Information Centre for information on FLAC phone clinic appointments in your area. FLAC’s Information and Referral Line for basic legal information is open Monday to Friday from 9.30am-1pm. Read more about FLAC and its services.
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.