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You are > Home > Q: The relationship between my girlfriend and me has gone through a very bad patch and we are splitting up.
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Thursday, May 21, 2009
Q: The relationship between my girlfriend and me has gone through a very bad patch and we are splitting up.
We are not married and have one child our 3-year-old daughter but we cannot agree on who is going to look after her. I have heard that legally the mother always gets to look after children is this true and what are my options?
A: The first thing to understand is that “looking after” a child from a legal point of view has some quite specific meanings. Guardianship, custody and access all relate to “looking after” the child but they mean different things and have different legal rights attaching to them. Guardianship of a child means you (if you are the legal guardian) are legally responsible for the child’s overall welfare, to maintain the child and to properly care for her. The legal guardian has the right to decide about the child’s education (religious and non-religious) as well as her health. A guardian has the right to be consulted on all matters to do with the upbringing of the child.
Custody is the actual day-to-day care and physical control of the child whereas access is the right to see, be with, and communicate with the child.
Under Irish law, if a child is born outside of marriage, the natural mother is automatically the sole guardian. So, to that extent, it is true that the mother does get to “look after” the child but, as the natural father, you can become a joint guardian in a number of ways. You have several options in this situation. If your girlfriend agrees to you becoming a joint guardian, there is a relatively informal procedure to put this in place. If she does not agree, then you must apply to the District Court to be appointed as a joint guardian.
The most important factor which the Court will take into account will be what is in the best interests of the child. Just because the mother does not agree to your application to be made a joint guardian does not mean that the Court will automatically refuse your application. You may, for example, be able to persuade the Court that due to the mother’s personal circumstances it would be better for the child’s overall welfare if you were also appointed as a guardian.
Even if you are not a guardian, you can still either agree or apply for custody and access rights. Again, the application is made to the District Court and the welfare of the child will be what will govern the Judge’s decision. It is fair to say that when parents are unmarried, Courts tend to consider that it is in the best interests of the child to live with the mother unless there are strong reasons for deciding otherwise.
However, it is also true that Courts will usually grant access rights to an unmarried father so that he can have regular contact with his child. Custody, and particularly access, rights are not set in stone (even when granted by a Court) and it is always open to either of the parties to go back to the Court to have the rights changed if your particular circumstances have changed. For example, one or other of you may have changed jobs or have to live in a different part of the country which would justify a change in the custody arrangements.
While it is possible to make applications to the District Court for guardianship, custody and access without having legal representation, it is always advisable to get the professional help of a solicitor. You may be eligible for Legal Aid and your local Law Centre can advise you about this.
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