WHAT ABOUT UNMARRIED FATHERS?

Can a father who is not married to the mother of his child become a guardian?

Yes.

If the mother agrees to the father becoming a guardian both parents must complete a statutory declaration in the presence of a Solicitor, Peace Commissioner, Commissioner for Oaths or a Notary Public – (Guardianship of Children (Statutory Declaration) Regulations, 1998 (S.I. No. 5 of 1998). This declaration states the name of both parents, that they are unmarried and that they agree to the father being appointed as a joint guardian. They then become joint guardians of the child. The declaration also states that the parents have agreed arrangements regarding custody and access.

Where there is more than one child, a separate declaration must be made for each child. The document is then retained by the parties and there is no need to lodge same with the court.

• An unmarried father is automatically a guardian if he has lived with the child’s mother for 12 consecutive months after 18th January 2016, including at least three months with the mother and child following the child’s birth (Children and Family Relationships Act 2015).
• If there is disagreement as to whether or not the father has been cohabitating for the required length of time, an application for the necessary declaration can be made to the court.
• If the mother does not agree to the father becoming the child’s guardian, then the father can apply to the court to be appointed as a joint guardian.

PLEASE NOTE THAT: This is possible, whether or not his name is on the child’s birth certificate.

WHO ELSE CAN APPLY FOR GUARDIANSHIP?

Examples include;

• A step-parent, a civil partner or a person who has cohabited with a parent for not less than three years may apply to the court to become a guardian where they have co-parented the child for more than two years.
• A person who has provided for the child’s day-to-day care for a continuous period of more than a year may apply for guardianship if the child has no parent or guardian who is willing or able to exercise the rights and responsibilities or guardianship.
• A parent can nominate a temporary guardian who can be appointed by the court if the parent is suffering from a serious illness or injury which prevents them from exercising their guardianship responsibilities in respect of their child.
• Guardians may also be appointed under a parent’s will or by court order. If a guardian appointed by a will (called a ‘testamentary guardian’) dies or refuses to act, the court can appoint a guardian to act jointly with the surviving parent. Guardians who have been appointed by will or by court order may also be removed.

HOW DO I APPLY FOR GUARDIANSHIP OF A CHILD?

• You will firstly need to contact the District Court Office in the area where you live or where the respondent lives. You must complete and lodge the relevant court forms in the court office. Court staff may advise you on the forms you will need to make the application but cannot tell you what to put in the forms.
• Notice of the application must then be served on the respondent at least fourteen days or, in the case of proceedings certified as urgent, at least two days, before the date of the court hearing.
• After service, the notice of application, together with a statutory declaration as to service, must be lodged with the District Court clerk at least two days before the court hearing.
  You must also attend in court on the day to make your application.

WHAT HAPPENS IF AN ORDER IS MADE BY THE COURT?

Where the District Court makes an order under the Act, the court clerk will give, or send by ordinary post, a copy of the order made to each person in whose favour or against whom the order was made.