Wednesday, November 2, 2011


We have recently received a number of queries in relation to legal guardianship from persons who wish to apply to the Minister for permission to reside on the basis of their parental role with an Irish citizen child.  Some of the queries relate to unmarried fathers who are no longer in a relationship with the mother of their child, and are in disagreement regarding custody and access to their child. Other cases involve persons who are not the natural parent of the child, but are married to the child’s parent, and are in every other way like a parent to the child. An understanding of the law of guardianship is required to establish what residency rights such parents acquire through their relationship to the Irish citizen child. The following is a short summary of this subject;

Guardianship is a collection of rights and duties which a parent has in respect of their child. The guardian has a duty to maintain and properly care for their child and to make decisions in areas such as the child’s religion, school, adoption, medical treatment. Only natural parents can be guardians of their children if the parents continue to be alive.

When the parents of the child are not married to one another, only the mother of the child is automatically a guardian. The unmarried father is not automatically a legal guardian of his child, and must apply to the local district court to be appointed a joint guardian of his child. An unmarried father can become a guardian by agreement with the mother where the father and mother can fill up and sign a statutory declaration for joint guardianship (S.I No 5 of 1998). The mother’s views are not determinative by the court in making the decision. The fact that the mother may not consent does not mean that the court will refuse the order for guardianship sought by the father. Any decision by the court will be made in the best interests of the child.

If the parents of the child marry each other following the birth of their child, then the father automatically becomes a joint guardian with the mother as long as the child has not be adopted and the mother was not married 10 months before the birth of the child.

If the mother marries a man who is not the father of her child, there is no legal relationship between her husband and her child. If the birth father is a joint guardian he remains a joint guardian of his child. If the mother and her husband wish to adopt the child and the father is a joint guardian, his consent to the adoption is required. If a father is not a joint guardian he has a right to be consulted about the adoption. If the child is adopted the father loses all legal rights in relation to the child.

When a woman has a child outside marriage and goes on to marry a man who is not the father of her child there may be a desire to establish a legal link between her husband and child. This may only be done in Ireland by having the child adopted by the married couple. This means that the biological mother becomes the adoptive mother of her own child and the step father becomes the adoptive father with all he rights and responsibilities to the child as if the child had been born into the marriage. It means that the biological father will have no further rights or responsibilities to the child and will not have the possibility of getting rights in the future.

The adoption creates a legal family unit with constitutional protection as if the child had been born into that family unit. It gives full parental rights and responsibilities to the adoptive father and this is especially important in the event of the death of the mother.

Parents who are guardians but especially mothers who are sole guardians, should make a will appointing a guardian to act on their behalf in the event if their death before the child is 18. This is called a testamentary guardianship. The surviving guardian if there is one then acts jointly with the testamentary guardian. If a parent dies without appointing a guardian in a will, it is possible for someone with an interest in the child to apply to the court to be appointed a guardian of the child.

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