Guardianship

What is guardianship?

Guardianship means the rights and duties of parents in respect of the upbringing of their children. A guardian has the right to make all major decisions affecting the child's upbringing, including choice of school, medical treatment, religious matters, health requirements and decisions about leaving the country. Guardians are responsible for the welfare of the child. Welfare includes the moral, intellectual and physical wellbeing of the child and where there is property held on behalf of the child, it includes the proper administration of such property.

Who can be a guardian?

The natural mother of a child is automatically a guardian of the child. Whether the father of a child is an automatic guardian depends on his relationship with the mother.

The married mother and father of a child are the most common guardians and they are so 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 birth of the child. Alternatively, he can acquire guardianship status if the parties marry after the birth of the child.

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

Yes. The natural father of the child can apply to the court under section 6A of the Guardianship of Infants Act, 1964 (as inserted by section 12 of the Status of Children Act, 1987) to be appointed guardian.

If the mother agrees to the father becoming a guardian there is no need to go to court. In this case both parents must complete a statutory declaration in the presence of a Peace Commissioner (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.

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. This is possible, whether or not his name is on the child's birth certificate.

Can other people apply for guardianship?

Yes, in certain circumstances, for example where a child has no guardian. 

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 to make an application for guardianship

Most applications for guardianship are made in the District Court. You can engage a solicitor to make an application on your behalf or you can make the application yourself. In certain circumstances you may be entitled to legal aid.

If you choose not to engage a solicitor you will need to contact the DistrictCourt office in the area where you or the respondent live. You must complete and lodge the relevant court forms in the court office. Court staff will identify the forms you need to make your application but cannot tell you what to put in the forms.

Notice of the application must 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, 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.

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. 

For more information on guardianship please contact Keith Walsh, keith@kwsols.ie, 01 4554723. 

The above information is impartial and based on the Court Services information on guardianship.