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Your rights as a Dad
As a Dad in Ireland, your legal rights will depend on whether or not you are married to the mother of your baby. Guardianship rights is the right to make or be part of the making, of all major decisions about your baby's care and well being until they are 18 years old. It also includes the responsibility for the welfare and well being of the child and the making of proper decisions on your child's health, education and religious upbringing.
If you are married to the baby's mother....
All babies born to parents who are married to each other are assumed to be the children of the husband, unless otherwise formally stated by both parties. If you are married to your baby's mother you will have the same automatic rights as the mother. You are entiltled to share in the decision making about all aspects of the child's care and well-being. If your relationship breaks down and you no longer live with your partner, decisions will obviously have to be made around the custody (your child's day to day care and with whom he/she lives) of your child. Some couples can arrange this between them and some couples cannot. If you need legal help to work through custody issues it is important that your solicitor is competent in family law. If both parents do not agree about where and with whom the child will live, It may be necessary to go to court. Family law cases are normally held in the District Court. A judge will make the decision on custody with the child's best interests in mind. This may be shared between the two parents or granted to the mother or to the father. The judge will also determine access rights which is the contact the child will have with the parent with whom he/she is not living, how often and where this will take place.
If you are not married to the baby's mother..
At present in Ireland, fathers who are not married to the mother of their baby do not have automatic legal guardianship rights over their baby. This still applies even if their name is on the baby's Birth Certificate. In many cases the mother and father just work out the care of the baby between them, especially if they are still in a relationship, or at least on good terms. This is a good thing on a day to day basis. Guardianship might only become an issue if a major decision needs to be made about the baby, such as consenting to medical treatment. A father who does not have guardianship rights cannot give such consent. If the parents split up or fall out, arguments can then occur about the baby. The following information may be useful in helping you understand guardianship and how it might affect your relationship with your baby. If you are going to undertake any legal process at any stage it is important to consult a legal practitioner who has a good knowledge of Family Law.
What is guardianship?
Guardianship is about more than just your rights, it is also about responsibility too. Becoming a guardian means that you agree to care for your child and to make sure his/her needs are met. It also gives you the right to make decisions on all the important matters that may affect the child e.g. Education, religious preference, medical treatments, choice about leaving the country and general welfare.
How can a father apply for Guardianship of his child?
Sometimes fathers may feel anxious about not having automatic rights of their child. However with the mother’s consent, a father can apply for “joint guardianship” by making a ‘statutory declaration’ in the presence of a commissioner of oaths, a peace commissioner or notary public. This form called a “Statutory Instrument- S.I no 5 of 1998 can be downloaded from the Treoir website at www.treoir.ie/help/leaflets.html. 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.
What if the mother of the child does not agree with me applying for Joint Guardianship?
If the mother does not agree to sign the statutory declaration or agree that the father be appointed as joint guardian, Don’t panic, you still have another option!
A father can apply to the court to be appointed as a joint-guardian. (You can do this even if your name is not on the baby’s birth certificate). You do not always require legal representation to do this as you can make the application on your own behalf. You apply directly to the District Court and contact the clerk of the court to institute proceedings. 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 father’s application. Each case is judged individually and priority is given to what is in the best interest of the child.
Is the Guardianship of my child permanent once if I manage to get it?
In most cases the guardianship status is permanent and remains unchanged. However, 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.
See https://www.treoir.ie/pdfs/guardianship.pdf for more details.
What does “Custody” mean?
Custody involves the day to day care of the child. The mother of the child born outside of marriage has sole custody. Custody arrangements can be made informally between the couple without involving court action but in challenging circumstances this is sometimes difficult. The father of a child born outside of marriage can then apply to the courts for “joint custody” whether or not he applied for joint guardianship or not (see above). Decisions are again made in the best interests of the child.
What does “Access” mean?
Where one parent has full custody of the child then the issue of access arises. Access relates to the time spent with your child. Access arrangements can be made informally whereby the father and mother of the child decide how they are going to manage the time spent with the child themselves. They can do this with consideration to where they both live, school or work commitments as well as the needs and age of the child
Where agreement cannot be reached for whatever reason, a mediation service may be useful. This would involve sitting down with a trained and independent professional who will help you and your baby’s mum work out the best way to include your baby in both of your lives.
The Family Support Agency provides a free and confidential mediation service for all couples who have separated (married or unmarried). They can be contacted on 01-6344320 or www.fsa.ie.
The father of the child can also make an application to the district court for access to the child if his name is not on the child’s birth certificate, he is not the child’s guardian or even if he has been refused guardianship. The child’s best interest is considered and it is only on very rare occasions that fathers are denied access to their child.
For details of all issues relating to access/custody and mediation go to https://www.treoir.ie/pdfs/access.pdf
What if the mother says I am not the father, but I think I am?
If this is the case, then you may have to ask for a paternity test to be done. This involves getting samples of DNA from both you and the baby. There are clinics around the country who can do this test. If the baby's mother does not agree to the test you may have to go to court.
For additional information chek out www.Treoir.ie.
What is Maintenance?
Maintenance is a payment paid by one parent to the other to help them with the cost of caring and looking after their child. It is paid when the parents are not living together or have separated. Maintenance can be requested up to the child’s 18th birthday or up to 23rd birthday if the child is in full time education. Paying maintenance does not in itself give a parent any special access or guardianship rights.
Maintenance Payments can be negotiated informally and voluntarily between the mother and father of the child or formally in court.
• Voluntary Maintenance Payments
It can be difficult to agree on a figure so it advisable to make out a reasonable and honest account of how much it costs to care for the child on a daily basis. The income of both parents needs to taken into consideration. This can be decided both of you by yourselves, or with the help of your parents or family
Details of Voluntary agreements made in writing can be made a “rule of court” in the local district courts. This means the maintenance agreement the same standing as a maintenance order made by going through the court system.
• Maintenance Payments through the Court System.
Either parent can apply to the court for a maintenance order against the other parent. A paternity test may be needed if there are questions and doubts over whether you are the baby’s father or not. Proceedings are always held in private. Decisions are made based on the parent’s incomes and the cost of caring for the child. The maximum the district court can ask a parent to pay is €150 per week. There is no limit in the high or circuit courts. In situations where the parent is not working it is possible to request a nominal payment of even €5 per week. If the parent’s circumstances change in the future it is easier then to apply for a “variation order” than to go through the whole application process again.
For more information on Maintenance go to https://www.treoir.ie/pdfs/maint2.pdf