Unmarried fathers in Ireland
An interesting legal question that I am always asked is: ‘What are my legal rights as an unmarried father in Ireland?’ The position of an unmarried father in Ireland is that he has no automatic legal rights in respect of his children, a fact which has been confirmed by the Irish Supreme Court. Contrary to popular belief, the presence of a fathers name on a birth certificate does not bestow any rights on an unmarried father – it simply confirms paternity.
The Irish Constitution recognises the family based on marriage and accords joint guardianship and custody to the parents of children born within marriage. The situation regarding unmarried couples is that the natural mother has automatic rights of guardianship which can only be suspended in exceptional circumstances. While an unmarried father has no automatic rights in respect of his children, he can acquire certain rights, including rights of guardianship, full or joint custody and access. He can attain such rights by two means:
- if the mother consents to it, by signed statutory declaration in the presence of a Peace Commissioner or Commissioner for Oaths
- by order of the district court.
Guardianship
Married parents are automatically the joint guardians of their children. If a child is born outside of marriage, the child’s mother is the sole guardian. Section 6A of the Guardianship of Infants Act 1964 gives an unmarried father the right to apply to be a guardian but he does not have any automatic right to be a guardian.
As an unmarried father you might be thinking to yourself why do I need guardianship rights of my child? Guardianship is very important and relates to the decision making process in a child’s life. It entitles a father to be consulted in relation to matters concerning the child’s health, welfare and education. A Guardian has a say in where a child lives, goes to school, medical issues etc. Any decision making in a child’s life must be made and agreed to by its guardian/s. Where a dispute arises in regard to a decision, the parties can go to court and a court can decide the issue. This process; however, should not be abused, as many Judges do not like making such decisions where it feels that the parents should be able to agree, for example, where a child will attend school.
How can I become joint guardian of my child?
An unmarried father can become a joint guardian with the consent of the mother if they both sign a Statutory Declaration in the presence of a Peace Commissioner or Commissioner for Oaths. If the parents get married subsequently, the father will automatically become a joint guardian of the child and a Declaration is not necessary.
If the mother of the child will not agree to sign a Statutory Declaration, the father may make an application to the District Court to be appointed as a joint guardian. The court will make its decision based on the best interests of the child.
What does custody rights of my child mean?
People associate and confuse the word guardianship with the word custody all the time but they are very different in Irish law. Custody essentially relates to where a child lives. An unmarried mother is the sole custodian of the child. An unmarried father must bring an application to court to become a custodian of his child. It is open to an unmarried father to apply for full or joint custody of his child. The father does not need to be a guardian of a child before he can make this application. The Courts utmost consideration in applications of this kind is the welfare of the child. While joint custody is possible, generally the realities of life mean that it is more practical for a child to reside with one parent while exercising access with the other.
Access
Access is the right of a child, not vice versa, to spend time with their parent, when they do not live with that parent. Access might typically include taking the child for a pre-arranged time on a daily or weekly basis, going on holidays or having overnight stays at weekends.
It is desirable, but cannot always happen, that parties agree the access arrangement between themselves as the parties lose that control when they enter a court room and the Judge decides for them. An unmarried father may apply to the District Court for access to his child regardless of whether or not he has been appointed a guardian. Again, the welfare of the child is the most important factor for the court when dealing with these applications.
The court will take account of all circumstances: the desires of each party, each party’s work commitments, the age of the child etc. For example, in circumstances where the child is only six months old it would be likely that a child of this age would not have overnight access with the father until he/she is older. An issue can also arise where a mother does not feel comfortable leaving their child unattended with the father where there are trust issues or past incidents that would lead to such feelings. A court may order that access be supervised for a period of time for a father to bond with a child or gain trust of the mother.
Every family law case is decided on the facts that present themselves in the court on that day. A court does not concern itself on what may happen next week or next month and whether a person might get a job or might get a promotion. A court has to decide a case on what is presented to it on the day of the hearing. A party can always bring a case back to the courts where circumstances change and the current orders do not work or cannot work or be sustained anymore.
What happens if I get on well with my girlfriend and we have ‘informal arrangements’ in place?’
It is important to note that informal arrangements between parents regarding access and custody are not subject to legal enforcement. Such agreements can be given the same standing as a Court Order if they are made ‘rules of Court’ by making an application to the District Court. If a written agreement is in place and signed by both parties, the Judge may make it a rule of court, thus giving it the same standing as a Court Order.
Maintenance
There is a legal responsibility in Ireland on parents, whether married or unmarried, to maintain dependent children. Maintenance can be paid periodically (i.e., weekly or monthly) or in a lump sum. In Ireland, paying maintenance does not in itself give a parent access or guardianship rights. What are the ways for maintenance to start?
- Voluntary maintenance
- Maintenance orders by court.
Voluntary maintenance
Parties can make informal agreements regarding maintenance. This can work well where both parties are reasonable and fair. If you find it difficult to come to an arrangement which satisfies both parties, you may find that mediation can help. Alternatively, each side can engage their own legal advice who will act as negotiator of an agreement. Both parties can then sign the agreement which can later be made a rule of court. A rule of court means that these agreements have the same effect as a maintenance order. A solicitor cannot act for both sides in this situation, given that there may be conflicts of interest.
Maintenance orders
If the parties cannot agree upon maintenance, either party can apply to court for a maintenance order. An application for maintenance can be brought either in the District Court or Circuit Court.
It should be noted that if the child is over 18 and under 23 and the financial circumstances do not allow him/her to attend further education, maintenance can be applied for in order to facilitate further education. If the child has a mental or physical disability to such a degree that it will not be possible for the child to maintain him/herself fully, then there is no age limit for seeking maintenance for their support. Each party must disclose their finances to the court and the judge will consider all of the family’s circumstances when making a maintenance order.
How much maintenance will I have to pay?
Like everything else maintenance varies from case to case. Maintenance can be paid on a weekly or monthly basis. Where a father is unemployed, any maintenance order that is made by a court will be on the basis that he is unemployed at the time. If he gains employment the maintenance can be increased. In the District Court the parties will fill out a form that is called a ‘statement of means.’ This form asks you to fill out, on a weekly basis, your income, expenses, assets, and liabilities. This information allows a court to examine your financial situation and determine what an individual can afford to pay in maintenance payments.
Failure to comply with a maintenance order
Failure by a parent to comply with a court order is contempt of court. Where a parent fails to comply with a court order and does not pay the amount awarded, an attachment of earnings order can be sought, and/or an enforcement summons. It should be noted that maintenance orders can be enforced in all European Union countries and in countries that are a party to the UN Convention on the Recovery Abroad of Maintenance Payments.
Conclusion
Generally, I would recommend that unmarried fathers bring custody, access and guardianship applications so as to afford themselves more protection as a father to their child. If a mother is being difficult regarding access then a court order can be put in place and the father will know exactly what days and times he has with his child. Regarding maintenance, I would always recommend for a father to pay whatever he can afford for the care and upkeep of his child. The amount will clearly vary whether an individual is in full-time employment, part-time employment or unemployed and on social welfare. In an ideal case the parties can agree in advance or on the day of the hearing the terms of the agreement this then can be reduced in writing and handed into the court. Thus, this becomes the terms of the court order. If either party breaches the order, they are in breach of a court order and the other party has that protection and can return to court. If the parties cannot agree to terms then the Judge hearing the case will decide the access arrangements and the appropriate maintenance to be paid for the benefit of the child.
Given the fact that a lot of births in Ireland are now outside marriage, this is an area that is very much in need of reform. Unmarried fathers in Ireland need to inform themselves of how to achieve their legal rights.
