Guardianship, Custody & Access
The guardian of a child is entitled to look after the child and to make decisions in regard to his or her welfare together with any other guardian of the child. Where the parents of a child are married both of them are his or her guardians and they have equal rights to make decisions in regard to his or her welfare. Where the parents of the child are not married the mother is the sole guardian of the child but the father can be appointed a guardian. If the mother is agreeable this can be done by way of a signed document, if she is not, the father can apply to court to be made a guardian
Custody denotes the right to look after the day to day needs of a child, primarily by providing his or her place of residence. Where the parents of a child are married they are entitled to joint custody of the child but one parent can be made sole custodian by way of agreement or court order. Where the parents are not married the mother is the sole guardian but again the father can be made a joint custodian by a signed agreement or by court order.
Access is the term used to describe arrangements whereby a parent or grandparent of a child are entitled to see and be in each other’s company for a period or periods of time.
The right of married parents to be a guardian and to have custody of their child or children stems from the Constitution and is reflected in legislation. Disputes between married parents concerning the guardianship, custody or access arrangements for their children are determined on the basis that the welfare of the children is the first and paramount consideration. Married parents are entitled to custody of their children as against strangers, unless they have failed in their duty to properly care for them or there is some other compelling reason why the welfare of the children cannot be achieved or protected by being in their custody.
The right of a mother of a non-marital child to be a guardian and to have custody of her child or children also derives from the Constitution. In a dispute between the mother and the natural father in regard to guardianship, custody or access the welfare of the child or children will be the first and paramount consideration.
Disputes in regard to guardianship, custody or access sometimes take place on a stand alone basis or sometimes take place in the context of an application for judicial separation or divorce. Where they take place on a stand alone basis they can be dealt with in the District or Circuit Court. If the original hearing is in the District Court then there is a right of appeal to the Circuit Court where a full rehearing will take place. If the original hearing is in the Circuit Court there is a right of appeal to the High Court where again a full rehearing will take place.
Judicial Separation and Divorce cases can be heard in the Circuit Court or in the High Court.