Guardianship

It is important to distinguish between guardianship and child custody:

• Guardianship is a legal relationship between parents and their children; it describes the group of rights and responsibilities automatically vested in the parents of a child born within marriage and in the mother of a child born outside marriage in relation to the upbringing of a child.
• Custody essentially relates to the physical day-to-day care and control of a child or children and is one aspect of the wider concept of guardianship.

A person appointed as guardian of a child has a duty to maintain and properly care for the child. A guardian also has a right to make decisions about the child’s education, health needs and general welfare. It is important to note that only guardians of a child have the right to custody and access of that child.

In the case of a child 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. Should the mother of the child agree, the father can become a joint-guardian if both parents sign a statutory declaration as set out in Statutory Instrument No. 5 of 1998. This declaration must be signed in the presence of a Peace Commissioner or Commissioner for Oaths and is an important document which should be kept safely.

If it is the case that the mother of the child does not agree to the father becoming a guardian, then he must apply to the court to be appointed as a joint-guardian. It is not necessary to have legal representation to do this, as an application can be made directly to the District Court  by contacting the clerk of the court to institute proceedings. Such an application can be made regardless of whether the father’s name is on the child’s birth certificate or not. In making a decision on such applications, the court will decide what is in the best interest of the child.     

Guardianship rights can be removed from fathers if the court is satisfied that it is in the child’s best interest. They cannot be removed from the mother unless it is the case that the child is placed for adoption.