Custody is having responsibility for the day-to-day care of a child or children. Custody determines where the child or children will live, and with whom. Access refers to the legal right of a child and an adult to have contact with one another when they no longer live together. As discussed in last week’s article, custody and access should not be confused with guardianship which relates to the rights and responsibilities that a parent has to their child.
Custody of a child can be automatic. For example, a mother who is not married to the father of their child has automatic sole custody of the child and married spouses living together have automatic joint custody. An unmarried father does not have automatic rights however where unmarried parents agree, it is possible for them to agree to joint custody of the child on an informal basis. This agreement can be done together, with the help of a solicitor or a mediator. If the parents cannot agree, an application can be made to the Court to make a decision. Importantly, an unmarried father does not have to be a guardian to make the Court application.
Either parent can apply to the Court for joint or sole custody. The Court will act in the best interests of the child and may consider the voice of the child if the child’s age and level of understanding are considered appropriate.
Applications for custody can be made to the District Court or in conjunction with Divorce/Judicial Separation proceedings in the Circuit Court.
In most cases, after marriage breakdown, the Court will grant joint custody to both parents albeit that one parent may have primary care of the children. Primary care means that the children live with one parent and have access with the other parent on a regular or semi-regular basis, depending on the circumstances of the case.
Access is the legal right of a child and an adult to have contact with one another when they no longer live together.
It follows on from a breakdown in any relationship where the children remain living with one parent and the other parent wishes to continue having contact with a child or children from that relationship. Unmarried fathers, regardless of whether they share guardianship with the mother, can apply to the Court to have access with their child.
A child has a right to maintain contact with a parent or guardian, if they want to. Similarly to custodial rights, the Court will act in the best interests of the child and where the child’s age and level of understanding are appropriate, the voice of the child can be taken into consideration as part of any Court decisions.
It is always preferable that parents attempt to agree an access arrangement between themselves. This can be done together, through their respective solicitors or through mediation. The agreement may include cooperation on a practical day-to-day basis such as details of where the access will take place, for how long and who can be present. Special arrangements should also be included in the agreement such as meeting the child or children in person for a social event or special event, like a birthday, communicating by phone or other electronic means, having the child or children stay overnight either occasionally, on alternate weekends or during school holidays and going on holidays with the child or children.
Where access cannot be agreed informally between the parents, either parent can apply to the Court. Applications for access can be made to the District Court or in conjunction with Divorce/Judicial Separation proceedings in the Circuit Court.
Access can also be granted to relatives and others such as brothers, sisters, aunts, uncles, and grandparents. This can either be done similarly by agreement or an application can be made to the Court for access.
Voice of the Child
The voice of the child is paramount following the Child and Family Relationships Act 2015. The Court is now obliged to hear the voice of the child, provided they can express an opinion. The child can be heard either in person or through an expert. If parents cannot agree a custody and access agreement themselves, the Court may order that a report is prepared to establish the views of the child or children. A suitably qualified expert will interview the parents and the child or children, and write a report for the Court which includes recommendations. The report forms part of the decision-making process and can often allow parents to find agreement where there was none before or if necessary, will assist the Judge in making the custody and access arrangements that are ultimately put in place.
As always, we strongly advise attempting to come to some form of agreement and resolution of custody and access arrangements. It is always beneficial that you would have a say in how the custody and access agreement involving your child or children will look.
Wolfe & Co LLP are well versed in custody and access matters with years of experience in this area. We are here to assist and support you through this process.
By Aislinn Collins Solicitor
This article is for general information purposes/general overview only and does not constitute legal or other professional advice. We recommend seeking legal advice to interpret and advise on any aspect of the law.
April 2023 Wolfe & Co. LLP Solicitors
Market Street, Skibbereen, Co. Cork – web: www.wolfe.ie
Tel: 028-21177, e-mail: firstname.lastname@example.org