Guardianship

Question: I am a father of a two year old girl. It was suggested by a friend that I should make an application for guardianship of my daughter. What exactly does that mean?

Answer: An Application for Guardianship may be worth considering in your case. Unlike a father, the Mother to a child born outside marriage is automatically the Guardian of her child. However, as in your situation, for the father of a child born outside marriage, it is not the same. On the face of it, a father to a child born outside marriage, has no automatic legal rights with respect to his child.

WHAT DOES IT INVOLVE?

In becoming a Guardian to your child you require both Rights and Duties in relation to the upbringing of her.
It is the duty to maintain and properly care for your child. It is also the right to make decisions about the child’s religious and secular education, health requirements and general welfare. It is a legal structure within which you have a say in your child’s upbringing.
Some examples of where it would arise, would be the right to have a say in what school the child is to attend, and any Application for a Passport for her would have to have your signature. In effect, as Guardian you have an extremely important role in your daughter’s life and on a practical level a person appointed Guardian to a child has the right to be consulted on all matters affecting the upbringing of their child.

HOW DOES AN UNMARRIED FATHER BECOME A GUARDIAN TO HIS/HER CHILD?

Other than the parties marrying each other, there are primarily two ways in which an unmarried father can become the Guardian:
(1). By making an application in the local District Court; or
(2). By consent between the mother and father by means of the signing of a Statutory Declaration (s.4 Children 1997)

(1) .DISTRICT COURT.

A father can make an application to the local District Court Judge requesting that an Order be made by the Court that he be appointed the legal Guardian to his child. This method is usually employed by the father when the parents to the child cannot agree as between themselves to the father being appointed Guardian. The primary concern and obligation of the Court in hearing such applications ,is that ,of the welfare of the child. Welfare in this context means the religious,moral, intellectual,physical,and social welfare. It is of paramount importance to the Judge that all these requirements will be adequately met by a natural father before any Order appointing him Guardian is made. If on the other hand, the Mother supports the application , success is almost always assured. The main difficulty off course arises , when the father’s wish to be appointed joint guardian is contested by the natural mother. Usually, the applicant employs a Solicitor although this is not necessary.

(2). BY CONSENT BY MEANS OF A STATUTORY DECLARATION.

A new and more simplified method of appointing a natural father as Guardian of his child that does not involve a court appearance was introduced in 1997 . Instead, the parents can make a Statutory Declaration (sworn declaration) without the necessity of Court or a Solicitor in which they agree to the appointment of the father as Guardian of the child. This method of appointing a father Guardian removes the need to attend Court where the Mother and Father are in agreement on the question of Guardianship. Nonetheless, signing this Consent seriously affects the legal position of the unmarried parents to the child and it would be strongly advised to seek legal advice before the Consent Form by mean of a sworn Declaration is actually signed.

CONCLUSION

It is entirely your decision as to whether you wish to pursue this application on your behalf. Obviously, in any such application, be it by Declaration or through the local District Court ,it is imperative, that at all times the Health and welfare of the Child takes precedence over all other considerations of the parents.

Myra Dinneen
Published: West Cork People July 2009