Understanding the Difference between Custody and Guardianship in Family Law

the difference between custody and guardianship

When it comes to parenting arrangements, the terms custody and guardianship are often used interchangeably. However, in family law, they have distinct meanings and legal implications. In this article, we’ll explore the difference between them to help you better navigate this legally complex area.

What Does Custody Mean?

Custody refers to the right of a parent to exercise physical care and control in respect of their child’s upbringing on a day-to-day basis.

Joint Custody for Married Parents

The married parents of a child are automatically joint guardians and joint custodians of their child. When married parents separate or divorce, they can decide on custody arrangements for their children. If they cannot agree, they may try to work out an arrangement through mediation. Failing this, they must apply to the courts for a final decision.

Custody for Unmarried Fathers

In cases where children are born outside of marriage, the mother has an automatic right to custody. However, a father who is not married to the mother of his child can apply to the court for custody in the absence of an agreement. A father does not need to have guardianship rights before applying for custody.

Who Else Can Apply for Custody?

Other persons who may apply for custody include:

  • a relative of the child
  • a person who has cohabited with the parent of the child for at least three years
  • a person who has had day-to-day care of the child for a continuous period of not less than 12 months.

What Does Guardianship Mean?

Guardianship relates to parents’ rights and duties regarding their children’s upbringing. A guardian has the right to contribute to making  significant decisions affecting the child’s upbringing, including medical treatment, choice of school, educational decisions, religious practice, and decisions about leaving the country. Guardians are ultimately responsible for the child’s welfare, including the child’s moral, intellectual, and physical well-being.

Automatic Guardianship for Mothers

The natural mother of a child is an automatic guardian of the child, but whether the father of a child is an automatic guardian will depend on his relationship with the mother.

Guardianship for Married Parents

The married mother and father of a child are the most common guardians and are entitled by virtue of section 6(1) of the Guardianship of Infants Act, 1964. However, for the father to have guardianship status, the parties must be married at the time of the child’s birth. Alternatively, a father may acquire guardianship status if the parties marry after the child’s birth.

Who Else Can Apply for Guardianship?

  • Other persons who may apply for guardianship include a step-parent, a civil partner, or someone who has cohabited with a parent for over three years and 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 willing or able to exercise the rights and responsibilities of guardianship. 
  • A parent can nominate a temporary guardian appointed by the court if the parent suffers from a severe illness or injury that prevents them from exercising their guardianship responsibilities regarding their child.

Custody Vs Guardianship – The Differences In a Nutshell

In conclusion, guardianship and custody are both legal arrangements that involve the care and responsibility of a child. While custody refers to the physical and legal control over a child, guardianship grants the guardian the legal authority to make and be involved in making decisions on behalf of the child’s best interests. The key difference between the two is that custody is usually awarded to a parent, while guardianship is often granted to a  party who is not the child’s parent. Understanding the nuances of these legal arrangements is essential to ensure that the child’s welfare is safeguarded appropriately.

Representation from Family Law Solicitors in Dublin

If you are considering applying for custody or guardianship or have been served with a custody or guardianship application, it is essential to seek legal advice from an experienced family law solicitor. At Canning & Co. Solicitors, we can provide you with competent and professional representation – we can arrange a  consultation to help you understand your legal rights and obligations. Contact us today by calling our Dublin offices at 01-5547854 for further information or fill in the contact form on this website.

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