Updated: July 2020 2019

Important to note

Many unmarried fathers assume they have joint guardianship rights if their names are on their child’s birth certificate. This is not so!! Please read the information on this page to gain important information regarding your rights, responsibilities, and how to obtain your rights in respect of your child.

What are my legal responsibilities in respect of my child?

All fathers have a legal responsibility to financially maintain their child. This applies whether or not the father is a legal guardian or whether or not his name is on his child’s birth certificate. See ‘maintenance’ below.

What are the legal rights when the child is born?

None, when the child is born an unmarried father does not have any automatic legal rights in respect of his child. In the Republic of Ireland, having your name on your child’s birth certificate does not give you any legal rights in respect of your child. In certain circumstances, a father who is cohabiting with the mother may acquire automatic guardianship rights (see below).

What legal rights can I apply for in respect of my child?

A father can apply to the court for guardianship, access, custody, or joint custody in respect of his child. Separate applications must be made for each right though all applications can be heard at the same time.

Guardianship is the collection of rights and duties that a parent (or non-parent in certain circumstances) has in respect of a child. For example, a guardian has a duty to maintain and properly care for the child and has the right to make decisions in the major areas of the child’s life e.g. choice of religion, of school, adoption, consenting to medical treatment, passports, and decisions about leaving the country, where the child lives and other matters affecting the welfare of the child.

A person can apply for guardianship up until a child reaches 18 years of age unless the child has married.

Guardianship should not be confused with custody, which is the day-to-day care of the child.

Access is the right of a child and a parent and/or guardian who do not live together to spend time together. This right can also be granted to certain relatives and others.

Custody is having the responsibility for the day-to-day care of a child.

Important: Before making applications for Guardianship, Access, and/or Custody, court Form No. 58.49 must be completed. This form is a ‘Statement of Arrangements for Child’. Download here

A father can get guardianship rights in any of the following ways:

By –

1. Agreement with the mother

A father and mother can complete and sign the statutory declaration for joint guardianship (S.I. No. 210 of 2020) in the presence of a Peace Commissioner or a Commissioner for Oaths.

This form declares that:

the parents have not married each other

they are the parents of the child and

they agree to the appointment of the father as a guardian.

When this form is signed and witnessed it needs to be kept in a safe place as it is the only evidence that the father is a guardian. There is no central register for these Statutory Declarations.

The S.I. No 210 of 2020 form can be downloaded here or order from Treoir on 01-6700120

2. Satisfying the cohabitation period

A father who lives (cohabits) with the child’s mother for at least 12 consecutive months including not less than 3 months after the child’s birth, will automatically be the guardian of his child. The three months period does not have to take place directly after the birth of the child. It can be fulfilled any time before the child turns 18 provided that it is part of the 12 consecutive months during which the parents have lived together. The cohabitation period can only be calculated going forward from the commencement date of the Children and Family Relationships Act 2015. This means that guardianship will only be acquired automatically where parents live together for at least 12 months after the 18th of January 2016.

A declaration that a person is (or is not) a guardian can be applied for through the courts if there is uncertainty, or disagreement, as to whether or not the father has been cohabiting for the required length of time. The application can be made by a guardian of the child or by the person wishing to seek a declaration that they are or are not a guardian of the child. The court shall make a declaration where it is proved on the balance of probabilities that the person named is or is not a guardian of the child. (Download Court Form No. 58.37 – Notice of application for a declaration)

3. Going to Court

If all else fails, the father can apply to the local District Court to become a joint guardian of his child, whether or not his name is on his child’s birth certificate. While the mother’s views are taken into account by the court in making a decision, the fact that she may not consent does not mean that the court will refuse an order for guardianship. The decision of the court will be made with the best interests of the child being the first and most important consideration. If you are not happy with a decision made by the court you have 14 days in which to appeal (see below). The terms of the order will come into force while waiting for the appeal unless a court directs otherwise. In the majority of cases a father will be granted guardianship.

See here for more about Guardianship.

4. Marriage following the birth

If the parents of a child marry each other following the birth of their child, then the father automatically becomes a joint guardian.

If a parent (who is a guardian) marries someone other than the parent of the child, his/her spouse will not have an automatic legal relationship to the child. However, the spouse can apply for (limited) guardianship rights if she/he has shared the responsibility of the day-to-care of the child for at least 2 years (see ‘Who else can become a guardian?’).

The only way the spouse can have full legal rights in relation to the child is through adoption. This is called ‘step-parent adoption’. If the child is adopted by the parent and his/her spouse, the other biological parent will lose all legal rights in relation to the child.

For more information on step-parent adoption see here…

Access and Custody

Parents can make informal arrangements regarding access and custody but if these arrangements break down they cannot be legally enforced. However, any written agreement between parents can be made a Rule of Court (see below).

A father can apply to the court for access and/or joint/full custody. Court orders can only be changed through the court.

Important: Before making applications for Guardianship, Access and/or Custody, court Form No. 58.49 must be completed. This form is a ‘Statement of Arrangements for Child’. Download here

See here for more about Access and Custody.

Maintenance

All fathers have a legal responsibility to financially maintain their child. This applies whether or not the father is a legal guardian or whether or not his name is on his child’s birth certificate. Where a father is not paying maintenance the court can order that maintenance be paid in respect of his child. An unmarried father does not automatically have a legal responsibility to financially maintain the mother of his child. However, where the parents have cohabited and the mother is a qualified cohabitant the father may have a liability to pay maintenance to the mother. See cohabiting parents.

Important: Before making applications for Guardianship, Access, and/or Custody, court Form No. 58.49 must be completed. This form is a ‘Statement of Arrangements for Child’. Download here

See here for more about Maintenance.

Collaborative Law

Collaborative law is where parents/guardians/family members work with specially trained lawyers, receive legal advice and guidance, and together with the lawyers, discuss and attempt to resolve issues through face-to-face meetings. Decisions are made by the parties involved. A written agreement can be made a Rule of Court (see below).

Association of Collaborative Practitioners: www.acp.ie

Legal Aid Board: LoCall 1890 615 200, www.legalaidboard.ie

Mediation

If you are having difficulty in agreeing on parenting issues you might think about mediation. Mediation is where a third party, the mediator, helps parents/guardians/family members reach an agreement. Mediation encourages all parties to co-operate with each other in working out arrangements concerning their children. Any written agreement can be made a Rule of Court (see below).

NOTE: a free mediation service is currently available through local District Courts located in Dublin (Dolphin House), Naas, Nenagh, Carlow, Ennis, Limerick City, Cork City, Tralee, and Clonmel. Check with your local district court for availability.

The Family Mediation Service: 01-874 7446, www.legalaidboard.ie

Mediators’ Institute of Ireland: 01-609 9190, www.themii.ie

What is a Rule of Court?

Where parents enter into an agreement in writing for maintenance, custody and/or access (including written agreements made during mediation), either parent may make an application to the court for an order to make the agreement a Rule of Court. The court may make an order if it is satisfied that the agreement is fair and reasonable and adequately protects the interests of the child. The agreement then has the same standing as a court order. A written agreement that is not made a rule of court is NOT legally binding.

What are my legal rights in respect of my child if I marry the mother of my child?

Provided that the mother was not legally married to someone else 10 months before the birth of the child, you automatically become a joint guardian of your child with the mother.

What are the rights of my spouse in respect of my child if I marry someone other than the mother of my child?

Your spouse will have no automatic legal rights in respect of your child but can apply to the court for guardianship rights. See ‘guardianship’.

What are my rights in respect of my child if the mother of my child marries another man?

The rights you already have in respect of your child do not change on the marriage of the mother:

If you are already a joint guardian you remain so

If you do not have any guardianship or access rights in respect of your child you can still apply for them, unless the child has been adopted by the mother and her husband

You still have a duty to maintain your child unless your child is adopted.

Note: A step-parent can apply to the court for guardianship rights. See ‘guardianship’.

What if my child is being considered for adoption?

If the mother and her husband (or anyone else) apply to adopt your child the law requires that, if possible, you are consulted before any adoption order is made in respect of your child, even if you are not a guardian of your child. If it is not possible to contact you the Adoption Authority will require an order from the High Court before an adoption can go ahead. If a father is concerned that he may not be consulted by the Adoption Authority, he can make a request in writing to the Authority that he be consulted, before or after the birth of his child.

before any adoption order is made in respect of your child, even if you are not a guardian of your child. If it is not possible to contact you the Adoption Authority will require an order from the High Court before an adoption can go ahead. If a father is concerned that he may not be consulted by the Adoption Authority, he can make a request in writing to the Authority that he be consulted, before or after the birth of his child. If you have joint guardianship rights in respect of your child then your consent is required before an adoption order can be made.

is required before an adoption order can be made. If the father objects to the proposed placement of his child for adoption, the placement will be deferred for not less than 21 days for the purpose of affording him an opportunity to make an application to Court for guardianship.

If your child is adopted your child becomes a child of the adoptive family as if s/he had been born into that family. This legally excludes you permanently from your child’s life. You no longer have any possibility of applying for any rights in respect of your child and you no longer have a responsibility to financially maintain your child. It is possible to agree to informal access arrangements between parents but these are not legally enforceable. See here for more about step-parent adoption.

Cohabiting Parents

Information for cohabiting parents is available in our cohabiting parents’ section.

Paternity Leave and Benefit Bill 2016 has been signed into law since 29/7/2016

As a result of the commencement of new legislation, fathers are entitled to two weeks of paternity leave and two weeks of paternity benefit for babies born on or after 1st September 2016. Fathers may start the combined package of paternity leave and paternity benefit at any time within the first 6 months following birth or adoption of a child. The PRSI contribution conditions and the rate of benefit paid will be the same as those for Maternity Benefit (€245 per week). See here for further information.

Unmarried Fathers Leaflet

Download Information Pack for Unmarried Parents HERE

NOTE:

Treoir 2019

While every effort has been made to ensure that the information on this webpage is accurate, no responsibility can be accepted by Treoir for any errors or omissions.