Guardianship is the legal term for the rights and responsibilities that a parent has in relation to their child.

These responsibilities include the duty to financially maintain and care for the child. They also include the right to make decisions in important areas of the child’s life such as how they are educated, the school they attend, consent to medical treatment, where they live, and any religion they might follow.

Guardianship ends when a child turns 18 years of age unless a guardian dies or is removed as a guardian before that.

Who can be a guardian?

Married parents
Married parents are automatically joint legal guardians of their children. This remains the case regardless of who the children live with, and after separation and divorce. The Courts are reluctant to award sole guardianship where parents are married to each other however it can be done in exceptional circumstances.

Unmarried parents
Where a child’s parents are not married, the mother is automatically the sole legal guardian. Unmarried fathers are not automatically joint guardians with the mother.
There are some exceptions to this as a result of the Child and Family Relationships Act 2015. The Act provides that the father becomes joint guardian under certain
circumstances as follows:

• An unmarried father automatically becomes the guardian of his child if he has lived with the child’s mother for 12 consecutive months, including at least 3 months with the mother and child following the child’s birth.
• If the mother of the child agrees, both parents can swear a declaration making the father joint legal guardian with the mother. This declaration must be done on the proper form and must be signed in the presence of a Peace Commissioner or a Commissioner for Oaths.
• If there is disagreement about whether the parents have been cohabiting for the required time, including the 3 months following the child’s birth, then an application can be made to the District Court to have the father appointed as a joint guardian. The father’s name does not need to be on the child’s birth certificate to apply for guardianship.

Can a step-parent, civil partner or cohabitee become a guardian?
In order for a step parent, civil partner or a cohabitee to become a guardian, they must have resided with the parent for a period of at least 3 years. An application can then be made to the District Court to become a guardian of their partner’s child. To apply, they must have been in a co-parent role to the child for over 2 years.

What if I am in a same sex relationship?
If your same sex relationship breaks down and you wish to have contact with the child of your former partner (where you are not a registered parent and guardian) you can apply to the District Court for access to the child. The Child and Family Relationships

Act 2015 provides that a person with whom a child lives, or has lived, can apply to the District Court for access to the child.

Can a grandparent become a guardian?
Family members such as grandparents and others who have acted in “loco parentis” (in the place of the parent) may apply to the District Court for guardianship. If the person has cared for a child on a day-to-day basis, continuously for 12 months, and there is no parent or guardian able or willing to exercise the rights and responsibilities for the child, then they may apply for guardianship. The Court will not automatically grant such
access and will be guided at all times by the best interests and welfare of the child.

Guardianship should not be confused with custody which is about a child's day-to-day care. Nor should it be confused with access which is the legal right of a child and an adult to have contact with one another when they do not live together. Access and custody will be discussed in next week’s article.

Wolfe & Co LLP are experienced in all matters relating to child law to include guardianship rights. We are happy to assist you and advise you on the best way forward.

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: info@wolfe.ie