What is Guardianship?

Guardianship means the rights and duties of parents in respect of the upbringing of their children. A guardian has the right to make all major decisions affecting the child’s upbringing, including choice of school, medical treatment, religious matters, health requirements and decisions about leaving the country. Guardians are responsible for the welfare of the child. Welfare includes the moral, intellectual and physical wellbeing of the child and where there is property held on behalf of the child, it includes the proper administration of such property.

Who can be a guardian?

The natural mother of a child is automatically a guardian of the child. Whether the father of a child is an automatic guardian depends on his relationship with the mother.

The married mother and father of a child are the most common guardians and they are so entitled by virtue of section 6(1) of the Guardianship of Infants Act, 1964. However, for the father to have guardianship status, the parties must be married at the time of the birth of the child. Alternatively, he can acquire guardianship status if the parties marry after the birth of the child.

Can a father who is not married to the mother of his child become a guardian?

  • if the mother agrees to the father becoming a guardian both parents must complete a statutory declaration in the presence of a Peace Commissioner or a Commissioner for Oaths or a Notary Public – (Guardianship of Children (Statutory Declaration) Regulations, 1998 (S.I. No. 5 of 1998). This declaration states the name of both parents, that they are unmarried and that they agree to the father being appointed as a joint guardian. They then become joint guardians of the child. The declaration also states that the parents have agreed arrangements regarding custody and access. Where there is more than one child, a separate declaration must be made for each child. The document is retained by the parties. It is not lodged with the court.
  • an unmarried father is automatically a guardian if he has lived with the child’s mother for 12 consecutive months after 18th January 2016, including at least three months with the mother and child following the child’s birth (Children and Family Relationships Act 2015).
  • if there is disagreement as to whether or not the father has been cohabitating for the required length of time, an application for the necessary declaration can be made to the court.
  • if the mother does not agree to the father becoming the child’s guardian, then the father can apply to the court to be appointed as a joint guardian. This is possible, whether or not his name is on the child’s birth certificate.

Can other people apply for guardianship?

Yes, in certain circumstances, for example;

  • A step-parent, a civil partner or a person who has cohabited with a parent for not less than three years may apply to the court to become a guardian where they have co-parented the child for more than two 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 or guardianship.

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.

Guardians may also be appointed under a parent’s will or by court order. If a guardian appointed by a will(called a ‘testamentary guardian’) dies or refuses to act, the court can appoint a guardian to act jointly with the surviving parent. Guardians who have been appointed by will or by court order may also be removed.

Áine McGuigan

Our Family Law Expert

Áine advises clients in relation to all aspects of family law including Separation Agreements, Judicial Separation and Divorce Proceedings. Her approach is to provide step by step guidance and support to clients in achieving the best outcome for them in difficult circumstances Áine can offer sensitive yet sound advice to help guide clients through the financial and legal implications and towards a solution that will allow the parties to move forward with their lives.

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