Child Guardianship

Child Guardianship is the legal relationship between parents and their child. Guardianship involves rights and responsibilities.

A child’s guardian has the right to be involved in considering and making decisions about a child’s upbringing such as education, religion, consent for operations, health and general welfare. A child’s guardian has the right to custody and control of the child and the child’s property. A child’s guardian has responsibility for the child until the child reaches 18 years of age. If a person aged 18 or over has a mental or physical disability which affects their ability to look after themselves, they may require a guardian to be appointed by the court for their benefit.

Married Parents

Where the parents of a child are married to each other both the mother and the father are joint guardians of their child.

Unmarried Parents

Where the parents of a child are not married to each other the law treats the mother and the father differently. In these circumstances the mother is the child’s guardian and the father is not the child’s guardian.

The law has changed from the 18th from January 2017 so that an unmarried father will automatically be a child’s guardian if he has lived with the child’s mother for 12 consecutive months after 18 January 2016, including at least 3 months with the mother and child following the child’s birth. If there is disagreement as to whether the parents have been cohabiting for the required length of time, an application to court may be made to confirm joint child guardianship.

How to Obtain Guardianship

Where the parents are in agreement on arrangements for custody and access the mother may consent to the father being appointed a guardian and this is done by both parents completing a statutory declaration appointing the father as a guardian. You may access the appropriate form here.

Where the issue of child guardianship is in dispute the father may apply to court to be appointed as a joint guardian. In the majority of cases the court will grant joint child guardianship to the father.

Parents may appoint a testamentary guardian in their will and when the parent dies that testamentary guardian acts jointly with the surviving guardian. If a dispute arises between guardians about what is best for the child then the matter can be referred to the court for a decision.

If a child has no guardian, it is possible to apply to the court for an order appointing a guardian.

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.