Guardianship in Ireland: who is a guardian, how to become one and what a guardian decides

Guardianship is the legal word for the right and the duty to make the major decisions about a child's life. It becomes urgent in two situations: when an unmarried father discovers he does not have it, and when someone other than a parent has been raising a child. The law is the Guardianship of Infants Act 1964, rewritten in large part by the Children and Family Relationships Act 2015.

Guardianship, custody and access are different things

Guardianship is decision-making responsibility: school, medical treatment, religion, passports, leaving the State. Custody is day-to-day care. Access is contact between the child and a parent or relative the child does not live with. A parent can be a guardian without custody, and after separation one of them usually is. The three terms and the court's best-interests test are set out in Child custody in Ireland: guardianship, custody and access explained; this guide stays with guardianship.

Who is a guardian automatically

• The mother is a guardian in every case, married or not.
• A father married to the mother is a guardian automatically, and so are adoptive parents.
• An unmarried father who lived with the mother is a guardian automatically under section 2(4A), inserted in 2015, where the parents were cohabitants for at least 12 consecutive months, including at least 3 consecutive months after the child's birth during which both parents lived with the child. The Act counts only cohabitation after the subsection came into operation.

Nobody issues a certificate for automatic guardianship, so a father relying on the cohabitation rule has to be able to show the dates if asked, which is one reason many couples sign the declaration anyway.

The three routes for an unmarried father

1. The cohabitation rule

If the dates above are met, he is a guardian without doing anything.

2. The statutory declaration

Under section 2(4), the mother and father sign a statutory declaration together stating that they are the parents, are not married to each other, and agree to the father being a guardian. The form is prescribed by regulations (S.I. No. 210 of 2020) and is on courts.ie. The Courts Service says it must be signed in the presence of a Commissioner for Oaths, a Peace Commissioner, a Notary Public or a Registrar of a Civil Registration Service, and that some solicitors act in these roles. It is not lodged in court, so the signed original is the proof. This route needs the mother's agreement.

3. A court order

Where the mother does not agree, the father applies to the District Court under section 6A. The application is free. The court decides on the best interests of the child (section 3) using the section 31 factors, which include the benefit of a meaningful relationship with each parent and the child's own views where they can be ascertained. The mother's objection is a factor, not a veto.

Step-parents, civil partners and cohabitants

Section 6C lets someone who is not a parent apply to be appointed in two situations:

• A person aged 18 or over who is married to or in a civil partnership with a parent, or has been that parent's cohabitant for over 3 years, and has shared responsibility for the child's day-to-day care for more than 2 years.
• A person aged 18 or over who has provided the child's day-to-day care for a continuous period of more than 12 months, where no parent or guardian is willing or able to act.

The court needs the consent of every existing guardian, though it can dispense with consent that is unreasonably withheld where the order is in the child's best interests. Where a parent is still alive, a section 6C guardian has the full range of decision-making rights only where the court expressly orders it. The court must also consider how many guardians the child already has.

Temporary guardians

Section 6E covers a guardian who becomes seriously ill. A guardian can nominate in writing, on the prescribed form, a person aged 18 or over to act as temporary guardian if the nominating guardian becomes incapable through serious illness or injury. The nomination can limit what the temporary guardian may decide. The guardian or the nominee then applies to the court, which appoints the temporary guardian if satisfied of the incapacity, that the nominee is fit and proper, and that it is in the child's best interests. A temporary guardian takes custody and acts jointly with any other guardian.

What guardians decide

The Courts Service lists the decisions: consent to medical treatment, what school the child attends, passport applications and taking the child out of the country, and the child's religious upbringing. Where there is more than one guardian, each is entitled to be consulted on these decisions.

Under section 12A, where a guardian will not or cannot sign, the other can apply to the court for the passport to issue without that consent, and the court can set conditions on who holds it. Taking a child to live outside the State needs every guardian's consent or a court order; removing a child without either can be treated as abduction.

Removing a guardian

Section 8 is deliberately narrow. The court can remove a guardian appointed by will or deed or by court order, or a father who became guardian by statutory declaration or under the cohabitation rule. It can do so only where another guardian exists or is being appointed, removal is in the child's best interests, there are substantial reasons, and the guardian consents, is unable or unwilling to act, or has failed in the duty so that the child's safety or welfare is at risk. Section 8 gives the court no power to remove a mother or a married father, and neither separation, divorce nor a custody order against them does so.

After separation, divorce or death

A divorce or judicial separation ends the marriage. It does not touch guardianship. Both parents stay joint guardians, and the parent the child does not live with has the same right to be consulted on schooling, medical treatment, religion and passports. Custody and access orders do not reduce guardianship. Guardianship ends when the child turns 18. Money for the child runs on a separate track: Child maintenance calculator in Ireland: what the State tool does and does not do explains the State's calculator, and Mediation for divorce and separation in Ireland: the free Family Mediation Service and what it can settle covers the free service where parents cannot agree.

When a parent dies, section 7 applies. A guardian who is a parent, or who has sole custody, can appoint by deed or will a testamentary guardian to act after their death, and can revoke the appointment by a later deed or will. The testamentary guardian acts jointly with the surviving guardian. If the surviving parent objects, or the testamentary guardian considers the surviving parent unfit, either can apply to the court, which can revoke the appointment, let the two act jointly, or let the testamentary guardian act alone. Where a child has no guardian at all, section 8 lets the court appoint one.

Where this leaves you

For most separating parents both already are guardians and will remain so; the live questions are custody, access and money. the maintenance and pensions tool walks through the State's child maintenance calculator. An unmarried father or a step-parent who is not yet a guardian has a free District Court application and can make it without a solicitor. Where the other parent opposes it, the solicitor page explains how to be put in touch with a family law solicitor, and Legal aid for divorce in Ireland: who qualifies and what you pay covers civil legal aid.