Children and Family Law

Custody, Access, and Guardianship

Custody is the term that is generally used to describe the physical day-to-day care and control of a child.
Access relates to the arrangements for contact between a child and the parent with whom the child does not normally live.
Guardianship is the legal relationship between parents and their child. The duty to maintain and properly care for a child and the right to make decisions about a child's education, religious upbringing, health and general welfare.

The Law - How are children arrangements made

Family mediation can help parents come to living and contact arrangements for their children

By default a married couple are automatically guardians and have joint custody of their children. By default a mother who is not married to the child's father has sole custody and is automatically a guardian of her children.
A father who is not married to the child's mother may be automatically a guardian in certain circumstances( if they 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 child's birth).
A father who is not automatically a guardian ,may become a guardian by swearing a statutory declaration with the child's mother, or by marrying her, or by court order.
For either married or unmarried parents, children arrangements can be made informally, or the District Court can make orders for custody and access and appointment and removal of guardians.
Where married couples are separating it is common for living and contact arrangements to be agreed as part of a separation or divorce proceeding.

Adoption

Adoption is the process whereby the legal relationship between a child and his/her natural parents is ended and is replaced with a parent/child relationship between the child and the adoptive parents.

An Adoption order can be made by the Adoption Authority of Ireland in respect of :

A child who is an orphan
A child whose parents are not married to each other; or
A child of a marriage, who has been abandoned.

The consent of every person being a parent or guardian of the child, or a person having charge of or control over the child, is normally required for:

The placing of a child for adoption, and;
The making of an adoption order for the child

The Father

If the natural father is a guardian of the child, or has care or control of the child, his consent is required.

Where the father is not a guardian, the Adoption Authority is required to make efforts to consult him.

The Mother

A mother who wishes to have her child adopted must first consent to the child being placed for adoption. At a later date consent to the making of the adoption order is required.

Where a mother gives the first consent and then wants her child back, the court may dispense with the need for her seconds consent if it considers that it is in the child's best interest to do so.

Is A Foreign Adoption Valid in this country?

For a Foreign Adoption Valid in his country, all of the requirements of an Irish Adoption must be complied with as well as the laws of the foreign country.

Fostering

Fostering is the placing of a child in the care of a person other than the mother or father of the child by Tulsa in accordance with legislation.

Tusla makes arrangements, where appropriate, for access to the child by the natural parent(s). As mentioned above if the parents are not satisfied with the access being provided, they may apply to the court for an order of access.

Child Abduction

This is the removal of a child by a parent from one country to another without the consent of the other parent or in breach of a court order.

Ireland is a party to International Conventions which provide for cooperation between countries in relation to child abduction. Generally, this means that, where a child is abducted to a Convention country, the child will be returned to the country where it normally lives and the courts in the country will deal with any dispute about custody and access.

In certain circumstances, the court will not make the order for return. This may happen if;

The court finds that the child was taken abroad with the agreement of the other parent
In exceptional cases, if the court is satisfied that there is a grave risk to the child's physical or psychological wellbeing.
Also in exceptional cases the court may take into account the wishes of children who state that they do not wish to be returned.

The above is provided for information purposes only. It does not purport to be either a statement of the law or legal advice.