Child Custody

The term child custody refers to the physical care and control of children, which means the day-to-day care, living arrangements and upbringing of dependant children. Dependant children in custody matters are children who are under the age of 18.

It is important to remember that parents will always remain parents to their children even after a separation or divorce and that the children will reach an age when they will be able to “vote with their feet” in a dispute as to child custody. Also a court is likely to be reluctant to make an order on child custody that would conflict with the properly held wishes of a child old enough to understand the issues involved.

Custody and Married/Separated Parents

In cases of judicial separation or divorce, one parent or the other is usually granted (by agreement or after a disputed hearing) custody of the children. However it is not unusual for the court to make an order for joint child custody whereby the children may spend a fairly equal amount of time with each parent, where such an arrangement is workable for the children and the parents. Bear in mind that One-Parent Family Payment is not payable if a couple has joint equal custody of children.

In a situation of sole custody the children reside permanently with the parent who has custody and the other parent is granted access to the children at agreed(or ordered) times, which can include overnight access stays

In any application to the court for a child custody or access order, the welfare of the child is the most important factor that a court will consider when making a decision. The definition of welfare here includes the child’s religious, moral, intellectual, physical and social welfare. It is a child’s right to see both parents and access for the non-custodial parent will only be denied if the court believes that it is not in the best interest of the child for such access to happen. The courts are reluctant to prevent access completely and where there are legitimate concerns raised the court can set out the time, place and duration of access visits and can order supervised access where another adult is present during visits if it considers it appropriate.

Custody and Unmarried Parents

An unmarried mother is the sole guardian of a child born outside of marriage. Unless the mother agrees to sign a statutory declaration giving him guardianship, an unmarried father must apply to the court in order to become a legal guardian of his child. It is not necessary for a father to have guardianship before he applies for child custody or access.

The unmarried mother has a superior legal position to the unmarried father and we would usually expect the courts to grant her custody in a dispute with an unmarried father about child custody. In general terms the courts tend to consider that where the parents of the child are unmarried, it is in the child’s best interests to live with its mother but of course each case is different.

As outlined above the courts will usually grant a right of access to the unmarried father so that the child can have regular contact with his/her father.

If the unmarried mother does not want custody of the child and intends placing, or has already placed, the child for adoption the unmarried father may still apply to the court for custody of the child. The issue for the court in deciding whether the father should have custody will be the welfare of the child as set out above. The length of time that the child has been with the adoptive parents will be an important factor in the case.

Custody and Same Sex Couples

If you are in a same sex relationship the issue of child custody may arise if you are the parent of a child. The same considerations apply here as have been outlined above. The basic principle is that when the parents of children separate and they cannot agree on who should have custody of the children, the court will decide. Again when the court is deciding on who should have custody of the child the most important factor that the court will consider is the welfare of the child.

The law in relation to child custody and guardianship of children in Ireland does not prevent a parent who has entered into a same-sex relationship from having custody of their children. The issue for same any couple is likely to be that as part of its decision making process, the court may consider the moral example given by a parent to his or her child, the influence that parent’s behaviour may have on the children and the manner in which the parent’s conduct is likely to affect the children’s welfare.

No matter what your circumstances it is important to remember that for all cases decisions regarding custody of children are never final and they are always open to review if circumstances change in the future. Ken Heffernan, Family Law and Divorce Solicitor, is experienced in dealing with these issues and can apply the legal requirements set out above to your particular case to advise you appropriately for your circumstances whether you are in Cork or elsewhere in Ireland.