Hugh Condron - www.familylawcentre.ie - Guardianship, Custody, Access & Childs Passport

 

Regardless of the nature of your relationship, you need to be aware of issues relating to children that result from, or form part of that relationship. These issues can include:

Guardianship is a person's legal responsibility to make decisions and perform duties regarding a child's upbringing, for example, schooling, medical treatment, passport.

Guardianship ends when a child turns 18 years of age unless a guardian dies or is removed as a guardian before that. Guardianship should not be confused with custody which is about the child's day-to-day care. It should not be confused with access which is the legal right of a child and an adult to have contact with one another when they do not live together.

Custody means the day-to-day care and home life of a dependent child. In custody matters, these are children under the age of 18.

There are two categories of custody:

Sole Custody is where one parent or person appointed by the court is responsible for the child's day-to-day care.

Joint Custody is where both parents or two people appointed by the court are responsible for the child's day-to-day care. If joint custody is not to be shared equally, agreements or decisions can be made about who will be the Primary Carer of the child. The Primary Carer is the person who has most parenting time with the child.

Custody of a child can be automatic, by an agreement, or by a judge's decision.

Automatic custody - You may already have automatic custody rights. This means you do not have to apply to court for custody of your child. The following have automatic rights: A mother who is not married to the father of their child has automatic sole custody of the child. Married spouses living together have joint custody.

Custody by agreement - Quite simply is when both parents agree on joint custody. You might want to ask a judge to make this agreement a Rule of Court. This means that it is treated the same as a court order and can be legally enforced like one.

Custody decided by the court - If you do not have automatic rights or cannot reach agreement, you can apply to the court for custody.

Most court applications are made to the District Court. They can also be made to the Circuit Court, often as part of an application for judicial separation or divorce.

Access refers to the legal right of a child and an adult to have contact with one another when they no longer live together.

Every child has a right to have contact with a parent or guardian, if they want to. Where the child's age and level of understanding are appropriate, the voice of the child can be taken into consideration as part of any court decisions.

You can agree access arrangements for a child. If you cannot agree, you can ask a judge in court to make a decision about access arrangements.

Access by agreement - Where the parties agree, it is possible to put shared access arrangements in place for the child. You can reach agreement about access arrangements together yourselves, or with the help of a mediator or a solicitor. Your agreement may include cooperation on practical day-to-day and special arrangements for example, meeting the child in person on agreed days and times, meeting the child in person for a social event or special event, like a birthday, communicating by phone or other electronic means, having the child stay overnight either occasionally, on alternate weekends or during school holidays or going on holidays with the child. You might want to ask a judge to make your agreement a Rule of Court. This means that it is treated the same as a court order and can be legally enforced like one. 

Access decided by the court - If you cannot reach agreement, you can apply to the court for access. Below are examples of people who can apply to court.

Child Passport Issues refers to court orders about the application for, and possession of a child's passport. If you have any queries about a child's passport or about an application for a child's passport, you should first contact the Department of Foreign Affairs Passport Office.

Please note that the Courts Service can only provide information on situations where there is a court's involvement in a child passport issue. These issues often relate to who signs for the passport and who minds or looks after it.

There are certain situations where you will need to get a judge's decision about a child passport issue. These include where: 

1) One guardian refuses to sign - If there are two guardians, both need to sign the application form for a child's passport. If one guardian refuses to sign the application form, you can apply to the court to have the child's passport issued without their signature.

2) One guardian cannot be found - A guardian may have become uncontactable. In this situation you can apply to the court to have the child's passport issued without their signature.

3) Access a child's passport - A court may put in place conditions regarding where the child’s passport is held. For example, the passport may be held by the court. It could also be held by a named person appointed by the court and released under certain conditions. In this situation, a guardian will need to apply to the court to have the the passport released. At all times, the court will consider the best interests of the child.

Most applications for guardianship, custody and access are made in the District Court. In some situations, relating to more complex cases, an application can be made in the Circuit Court or the High Court. Each court has its own rules on how to apply for a court order. PLEASE NOTE THAT THERE IS A DIFFERENT PROCESS FOR DUBLIN THAN FOR THE REST OF THE COUNTRY. The courts do not charge for family law applications. You should always contact your District Court Office, Dolphin House in Dublin, to be sure of how they handle these kind of applications.

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