Child Custody and Guardianship in Ireland | Co-Parenting
One thing that makes custody unique in Ireland is the court's unofficial preference for the mother when parents never married.
The most important thing to keep in mind when arranging custody, access and guardianship in Ireland is what's best for the child involved. This drives all court decisions.
Custody and access
Custody is the right and responsibility to care for a child under 18. Access is the right to have contact with a child who doesn't live with you.
- Joint custody gives both parents custody. One is named the primary carer — usually the parent who has more time with the child.
- Sole custody gives just one parent custody. The court usually awards the other parent access.
In joint custody situations, the primary carer is the one who can receive child maintenance, and their address also becomes the child's main address.
An unmarried mother automatically has sole custody. However, the father can apply for joint or sole custody or access (or the parents can agree).
Married parents automatically have joint custody; this can change to sole custody when they divorce if it's best for the child, but joint custody is the default for divorce cases.
Guardianship
Guardianship is the right and responsibility to make decisions about a child under 18. It does not give you custody or access.
The following people are guardians automatically:
- A birth mother
- A father married to his child's mother, even if they married after the birth
- An unmarried father if he lives with the mother for 12 consecutive months including at least three with the child (The mother must agree on the timeline.)
An unmarried father who does not meet the requirement above can become a guardian by signing a statutory declaration form with the mother. Also, in her will, the mother could appoint the father to take over as a testamentary guardian after her death.
If you're not in any of these situations, you'll have to apply to the court for guardianship. If you're the biological father, your application should be approved unless you have severe issues that could affect the child, like addiction or violence.
Unlike custody, guardianship is not usually affected by divorce or splitting up.
Even when both parents are guardians, usually the parent who is the sole custodian or primary carer makes most decisions.
How custody is decided
By agreement
Agreeing is the best way to decide custody because it keeps the power in the parents' hands and avoids the drama and costs of a court battle.
If you have trouble agreeing, you can turn to mediation, collaborative law or solicitor negotiations for help finding common ground.
You should write your agreement into a parenting plan, which explains the details of how you'll share or divide parenting and generally includes a custody and access schedule. A mediator can help you create this, or you can do it yourself using a parenting plan template.
Many parents then ask the court to make their parenting plan into a rule of court, which is legally enforceable like a court order. The court is generally happy to grant a rule of court unless it sees potential problems for the child or one parent seems to have been coerced.
By the court
If you can't agree with the other parent, you'll need a court to decide custody. You will need to attend at least one hearing so you can get a court order.
It's recommended you hire a solicitor if you go this route as you'll need allowable evidence to prove that your request is best for your child. Your solicitor will also be familiar with court rules and procedures.
In a divorce, courts most often award joint custody unless one parent is unfit. In a custody case involving unmarried parents, they tend to give one parent custody — usually the mother. Then they award the other parent regular access unless it would be detrimental to the child.
It's common for the court to appoint an expert to report on the family's circumstances, the child's psychological state, the child's opinions or all three. (The judge does not necessarily rule in line with the child's opinions.) These reports cost €6,000 to €7,000, and parents usually split the cost evenly.
Applying for custody or a rule of court
Before you apply to a court, try to reach agreement with the other parent. If you're successful, submitting an application to get a rule of court is optional. (Of course, if you're divorcing, you'll still need to apply to the court for that.)
It's free to submit family law applications. The parent who applies is the applicant, and the other one is the respondent.
If you're not divorcing, apply in the District Court nearest to where you or the other parent lives or works. Follow these steps:
- Complete the custody application paperwork and request a hearing (For the Dublin District Court Family Law Office, known as Dolphin House, make an appointment to do this with a staff member.)
- Serve the paperwork on the other parent
- Lodge your paperwork (including proof of service) in the court office at least two days before your hearing
- Attend your hearing
If you're divorcing, apply in the Circuit Court nearest to where you or the other parent lives or works. Follow these steps:
- Complete and lodge the divorce application paperwork
- Serve the paperwork on the other parent
- Get a date for a hearing
- Attend your hearing
Irish custody laws and legal help
Irish custody law is governed by the Children and Family Relationships Act and the Guardianship of Infants Act.
In addition, you'll need to follow the appropriate rules and procedures if you go to court. The District Court's rules differ from the Circuit Court's rules.
While you can represent yourself in court, a solicitor is recommended, especially if you don't agree with your co-parent. Expect to pay at least €200 an hour to a solicitor, though solicitors in rural locations may charge less.
If you have a low income, you might qualify for free or reduced-fee legal aid. Contact your local law centre.
The Family Mediation Service also provides free help, regardless of income. It helps divorcing and separating couples work out agreements about custody, property and more.
Staying organised while you sort custody
The process of deciding child custody requires serious organisation. You may need to create a parenting plan, draft multiple custody and access schedules, calculate expenses and beyond.
The Custody X Change online app enables you to do all of that in one place.
With a parenting plan template, customisable custody calendars, an expense tracker and more, Custody X Change makes sure you're prepared for whatever arises in your journey to child custody.
Take advantage of our technology to stay on top of all the moving parts of your case.
Our professional sources
The following professionals have helped us understand child custody and guardianship in Ireland and may be able to help you too.
Carmody Moran Solicitors
Anthony Carmody, solicitor
The Family Practice
Jeremy Ring, solicitor
Suzanne McClean, parent mentor