Guardianship is the collection or rights that a parent (or non-parent) may have in respect of a child. The rights of a guardian include the rights to make decisions on matters affecting the child such as medical consents, religious upbringing, education, passports etc.
Who is automatically a child’s guardian?
Where a child is born to parents who have not married then only the mother will have automatic guardianship of the child.
How does an unmarried father obtain guardianship rights?
- By agreement with the mother
The mother and father can sign a statutory declaration for joint guardianship. The form declares that they are not married, are both parents of the child and agree to the appointment of the father as a guardian.
- By satisfying the co-habitation period
Where the father and mother are not married to each other and have been cohabiting for not less than 12 consecutive months, which MUST include 3 consecutive months after the birth of the child. The 3-month period does not have to take place directly after the birth of the child, it can be fulfilled any time before the child turns 18 BUT it must be part of the 12 consecutive months of the parents living together.
- Guardianship Applications & Court Orders
The father can apply to the District Court for an Order appointing him as a joint guardian of the child, whether or not his name is on the birth certificate. The decision of the Court will be made in the best interest of the child.
- Marriage following the birth:
If the mother and father marry after the birth of their child, then the father automatically becomes a joint guardian.
Guardianship for persons other than parents:
In respect of non-parents, the court will decide what guardianship rights to grant. These rights may include all or some of the guardianship rights granted to a parent.
An application can be made by:
- A person who has been married to, in a civil partnership with, or has been for over 3 years a cohabitant of a parent of the child and has shared with that parent responsibility for the child’s day to day care for a period of more than 2 years or;
- A person who has provided for the child’s day to day care for 12 months where the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship in respect of the child.
Temporary Guardianship:
A qualifying guardian can nominate a person to become a temporary guardian in the event that the qualifying guardian becomes incapable through injury or serious illness. The nominated person must apply to the court to activate the temporary guardianship.
Removal of Guardianship rights:
A mother’s guardianship rights can only be removed if the child is adopted. Any other guardian can have their guardianship rights revoked by a court if the court deems it is in the best interests of the child.
Bronya Jackman is a Solicitor in the Family Law and Personal Injury Departments. If you have questions about any of the issues raised in this article, you can contact Bronya directly here.