Custody in family law cases means the day-to-day care and control of a child, primarily by providing his/her place of residence. When the parents of a child are married, they automatically have joint custody of the child. Where the parents are not married, the mother is the sole custodian but the father can be made joint custodian by a signed agreement or by court order. It is not necessary for a father to have guardianship rights before he applies for custody. (Section 11(4), Guardianship of Infants Act, 1964)
Custody and access are terms that are often used interchangeably. However custody refers to the day to day care and control of the child and access is the right to see and communicate with the child (often referred to as visitation rights).
The natural mother’s right to custody is a constitutional right but the natural father has no such right. In general, the courts tend to the view that where the parents of the child are unmarried, it is in a very young child’s best interest that they live with the mother. It is possible for the child’s father to apply for sole custody of his child. In situations of marital breakdown, it is often necessary for a court to determine which of two parents should be awarded custody. A court can grant joint custody to both parents. Previous caselaw suggests that joint custody may be appropriate where parents live close to each other, and to their children’s school. The courts have been reluctant to grant joint custody where there is significant acrimony between the parents.
An appeal against a custody order must be made within 14 days in the District Court and 10 days in the Circuit Court.
The form to be filled out for an application for custody is provided on the following link:
Breach of Custody Order:
When a child is removed from the person who has the legal right to custody without that person’s consent it is called child abduction.
Applications for custody:
Both parents can apply for a custody order. When the child is not in the custody of either parent, then the grandparents or relatives or Health Service Executives can apply for custody following an application for Guardianship. The Health Service Executive may request what is known as a section 47 enquiry. A section 47 enquiry means that the HSE may carry out an investigation when they have reasonable cause to believe that a child living in their area has suffered or is likely to suffer significant harm.
The enquiry will involve an assessment of the child’s needs and the ability of those caring for the child to meet his or her needs. The purpose of this investigation is to decide whether Children’s Services should take any action to safeguard or promote the child’s welfare.
Q. What is custody?
A. Custody is the right to look after the day-to-day needs of a child.
Q. What is the difference between custody and access?
A. Access is the right to see and communicate with your child. Access can be supervised or unsupervised.
Q. How much does it cost and how long will it take?
A. Custody cases usually cost between €700 and €1000 if there is one hearing in the District Court, and usually take up to eight weeks.