MJ O'Connor Solicitors

As married mothers and fathers are automatically joint guardians of their children this brief focuses on unmarried fathers. For children born outside marriage the mother is automatically the guardian of those children and many fathers, happy in the relationship do not realise, sometimes until the breakup of a relationship that they are not guardians of their children.

Guardianship is the legal responsibility on and the right of the guardian to make decisions and perform duties in relation to children. Such decisions include the choice of school or religion, the decision to bring the children out of the country and indeed regarding adoption. Custody on the other hand is one of the wider aspects of guardianship and essentially relates to the day to day care and upbringing of the children.   Some unmarried fathers believe that since their name is on the child’s birth certificate they are full rights in relation to the child but not so. After the birth of a child it is advisable that the issue of guardianship be discussed between the parents. Also, should the issue not have arisen and the relationship is now breaking up it is equally advisable that all matters including guardianship be dealt with promptly.

Once the mother agrees the unmarried father can easily become a joint guardian by both parents signing a statutory declaration. This is a simple form available online and must be signed in the presence of a Commissioner for Oaths or solicitor. Once signed these forms are not lodged in court but are kept by the parties as evidence of guardianship.

Should the unmarried mother not agree the unmarried father can make an application to the District Court to be appointed joint guardian. Even if the mother does not agree and even if the father is not named on the birth certificate the court may still make an order appointing the father as joint guardian. In fact statistics show that the majority of applications are granted by the District Court. It is important to remember that in making its decision the court will have cognisance as to what is in the best interests of the child.

As advised guardianship affords rights and responsibilities and should be dealt with promptly. Should parents decide to marry following the birth of a child the father will then automatically on marriage become a joint guardian (once the child has not been formally adopted and the mother be previously married). However, should the issue of guardianship not have been dealt with and the mother subsequently marries the husband does not have a legal relationship to the child but should the father be a joint guardian his consent is required for adoption.

For further information please contact Fiona Ormond at formond@mjoc.ie or on 051 355663