Guardianship

Guardianship entitles a parent, or other person, to make important decisions regarding that child's upbringing, for example, deciding on the child's religion, education, medical treatment and where they live.

Guardianship is different to custody which is about a child's day-to-day care.

It is also different to access which is the legal right of a child and an adult to have contact with one another when they do not live together.

Guardianship of a child can be:

• Automatic
• By agreement between both parties
• By a judge's decision in court

Automatic guardianship

You may already have automatic guardianship rights. This means you do not have to apply to court for guardianship of a child.

The following people have automatic rights:

• All birth mothers whether married or not. This only changes if the child is given up for adoption.
• Both married parents including parents of an adopted child. This applies whether the couple marry before or after the child's birth. Separation or divorce does not change this automatic right.
• An unmarried parent if they have lived with the child's mother for 12 consecutive months. This period of time must also include at least 3 months with the mother and child following the child's birth. The child's mother must agree on the time spent cohabiting.

Guardianship by agreement

A father who is not married to the mother of his child does not have automatic guardianship rights in relation to that child. If the mother agrees for him to be legally appointed guardian, they must sign a joint statutory declaration. The statutory declaration (SI 210 of 2020) (pdf) must be signed in the presence of a Peace Commissioner or a Commissioner for Oaths. If there is more than one child, a separate statutory declaration should be made for each. You can apply for guardianship up until a child reaches 18 years of age.

Applying to the court for guardianship

If the mother does not agree for the father to have guardianship, the father may apply for guardianship to the District Court.

As well as fathers, certain other people may apply to the court for guardianship:

• A step-parent, a civil partner or a person who has lived with a parent for not less than 3 years may apply to the court if they have co-parented the child for more than 2 years.
• A person who has provided for the child’s day-to-day care for a continuous period of more than a year if the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of a guardian.

A father (or other person) appointed as guardian by the court may be removed as guardian at a future date. A father married to the mother of a child is normally guardian for life.

Guardianship ends when a child turns 18 unless a guardian dies or is removed before that.

A parent can nominate a temporary guardian (pdf) using a special form who can be appointed by the court if the parent is suffering from a serious illness or injury which prevents them from exercising their guardianship responsibilities in respect of their child. The scope of temporary guardian’s rights will be set out in the District Court’s Order, which will usually be identical to the wishes you set out in the form.

Further information on the rights and responsibilities of fathers is available from Treoir.

There are certain situations where you will need a judge's decision about a child passport issue. For example, when:

• One guardian refuses to sign the passport application form

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.

• 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.

• A guardian cannot access a child's passport

A court may put in place conditions regarding where a 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 only released under certain conditions. In this situation, a guardian will need to apply to the court to have the passport released. At all times, the court will consider the best interests of the child.

Most applications for guardianship, or to remove the need for the consent of a guardian for the issue of a child passport, are made in the District Court. To make an application to the District Court there are a number of steps to take.

You will need to download the guardianship application forms and any other forms for passport issues you need, from the Courts Service website. Depending on the application type you are making , you may also need to fill out a Statement of Arrangements form (pdf) and attach a copy of it to your application.

If you cannot download a form, you can request it from your local Court office.

The Courts Service does not charge a fee for making family law applications.

If a child lives with you and you are responsible for their care, you may get social welfare support.

For example, you may qualify to receive Child Benefit which is a monthly payment to all parents or guardians of children under 16, or under 19 if the child is in full-time education or has a disability.

You may also qualify for a weekly Guardian's Payment if a child lives with you and you are responsible for his or their care. You do not need to be a legal guardian to apply for Guardian’s Payment.