Appointing a Guardian

Posted by Higgins O Reilly on July 10 2013 @ 12:31

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 in Ireland, only the mother has automatic rights 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).

Rules

If a child in Ireland is born outside of marriage, the mother is the sole guardian. The position of the unmarried father of the child is not so certain. If the mother agrees, the father can become a joint-guardian if both parents sign a "statutory declaration". The statutory declaration (SI 5 of 1998) must be signed in the presence of a Peace Commissioner or a Commissioner for Oaths. A copy of the statutory declaration (pdf) is available from the National Information Service of Treoir (see below) or on its website.

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. The declaration also states that the parents have agreed arrangements regarding custody of and access to the child. If there is more than one child, a separate statutory declaration should be made for each.

However, 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 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). 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.

Removal of guardianship rights

Fathers 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.

Marriage 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. There is therefore no need to apply for guardianship rights nor is there any need for the father to adopt the child.

Where the father is joint guardian and the mother subsequently marries another man or enters into a civil partnership, the father will remain the joint guardian of his child. If the mother and her husband wish to adopt the child, they must seek consent from the child's father. If the child's father consents to the adoption, then he gives up his right to guardianship of his child.

Same-sex couples

The issue of guardianship may arise if one of you has a child. You may have guardianship rights in relation to your child and you may wish your same-sex partner to also have guardianship rights. However, under current legislation, it is not possible for your partner to apply to become a guardian of the child. Nor is it possible for you and your same-sex partner to jointly adopt a child, even if one of you is the birth parent of the child.

Guardians and wills

It's very important if you are the guardian of a child (especially if you are a mother and 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 he/she gives his/her 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.

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