Incredibly there are nearly 200,000 one parent families in Ireland. This figure covers people who have never married but also covers divorced, separated and widowed families. One in five children in Ireland live in a one parent family.
The main difficulty in this area is in relation to the non-marital father. There are very serious issues in relation to access, custody and guardianship for the father of a child, who is not married to the child’s mother.
It is a source of huge unhappiness for fathers who are not automatically guardians of their children whereas the mother is. This again is an area of law that will change in due course but in the meantime this extraordinary anomaly creates untold hardship and unhappiness for the non-marital father.
If father and mother can agree that the father should be appointed a guardian then there is a straightforward procedure available whereby a statutory declaration is completed and a court order will generally then be made on consent. However, the mother must agree to the appointment of the father as a guardian. If the mother does not consent to the father being appointed a guardian, then the father has no alternative but to make an application to court.
A court will determine this application based on what the court believes is the best interest of the child but in a very high percentage of cases, the courts seem to believe that it is not in the best interest of a child that their natural father should be appointed a guardian. It should be remembered that a guardian is entitled contribute to matters in relation to the education, religion, health and welfare of a child. In other words the unmarried father has a right to be consulted but nothing more. If a mother consults you and you vigorously disagree with a course of action she is proposing, you have no further legal entitlement. This can only happen if you apply for access or custody.
2. Access & Custody:
These two words in our opinion very unfortunate in that they are misleading and emotive. Fathers often complain that although they have joint custody, the child is with them, for example, two days a week whereas the mother has the child five days a week. ‘Joint’ does not mean 50/50. The word access is also an unfortunate word and we really should follow the UK lead which talks about ‘residence’ rather than custody and access.
It is often the case that there is no reality to one parent seeking full custody of a child if that parent is working. In the past, fathers were often working outside the family home whereas the mother would be working exclusively inside the family home and questions of custody were often unquestioned. The situation is completely different now but the courts still lean very heavily in favour of the mother and particularly so in the case of the non-marital family.
If a father is making an application for sole custody of a child, he will have to discharge the considerable burden of proving to a judge that it would be in the best interest of the child that the child be in the sole custody of the father rather than the mother. Behaviour of the parties is of great importance and in our experience we have found that where a mother regularly denies the father contact with a child, this can ultimately lead to the mother losing custody. However, this is rare.
Access orders made in the court or often extremely limited. Most orders would state that the father will have access on Saturdays between 10 and 6 and perhaps one other day of the week. Orders often include overnight access but it is relatively rare that access orders, particularly in the District Court, are comprehensive and difficulties very often arise on birthdays, on holidays periods such as Easter and Christmas, and on special occasions such as birthdays. If an access or a custody application is being made to court, all of these matters must be taken into account and if orders are made, they should be comprehensive orders.
4. Enforcement of Access:
This is a very difficult area and there is often very little a court can do where one parent denies the other parent access to a child even where a court order exists. Where there is a blatant breach of a court order, it is often the case that the only step a father can take is to bring an enforcement summons before the court. Unfortunately the ultimate penalty is that a person should be sent to prison for breach of a court order but it is rare that this would happen where the guilty party is the mother. We use every endeavour we possibly can to try and resolve these difficulties without legal proceedings so that if we do have to bring the matter to court, we can do so on a consent basis. The prospects for harmony between the non-marital couple are increased enormously if an agreement can be reached outside court rather than having an order imposed on the parties. With this in mind, we will use every endeavour to bring about agreement and if we cannot do this ourselves, we have a number of external bodies we can refer clients to, who can assist. These range from experts in the area of mediation, conflict coaching and we have often referred the parties to experienced child psychologists, who in the process of meeting the parties will invariably assist in helping the parties arrive at an amicable settlement concerning difficult matters of custody and access.
We urge all our clients not to bring matters of custody and access to court. Every endeavour should be made to try and resolve these difficulties outside court. If the matter does proceed to court you have a situation, particularly in the District Court, where there is huge pressure on judges to hear cases and you will often have a situation where there are 20 or 30 cases to be heard in just a couple of hours. It is just not realistic to expect a court to be able to give substantial issues concerning custody and access and residence the appropriate time and attention they need. We will therefore do everything we can to avoid court hearings but if they are unavoidable we will often look to fix a special date for the hearing of a case if it likely to be a lengthy case.
We will generally charge between €700 and €1,200 to deal with a contested custody/access application in the District Court. Applications are also made to the Circuit Court and High Court but invariably they will be combined with applications for judicial separation or divorce.
5. Financial Support and Protection:
An unmarried mother cannot seek maintenance from the unmarried father but an unmarried mother can seek maintenance for the child from the unmarried father. The unmarried parents do not have the same protection under the Family Home Protection Act, 1995 although they do now have protection under various clauses of the Domestic Violence Act 1996 and the Domestic Violence Amendment Act of 2002.
Given that the provisions of the Family Home Protection Act, 1976 do not apply to non-married couples, property matters can create huge difficulties when a couple separate and we have often advised clients that they ought to give consideration to completing the equivalent of a prenuptial agreement so as to hopefully avoid difficulties further down the line. Where unmarried couples separate and property is owned by one party alone, then orders will generally be made based on the level of financial contribution made towards the purchase or repayment of mortgages concerning these properties. This can be a very difficult area for the person who stays at home but a strong argument can be made that the person staying at home has made an equal contribution to the maintenance of the home even if they are not making an actual financial contribution. However, this is a difficult area and further advice should be obtained.
It should also be remembered that if you are in a non-marital relationship and you die without leaving a will then your partner may not have any entitlement to inherit. Children have the same inheritance rights as the children of married parents but the surviving partner could be left extremely exposed. All of this can be dealt with if appropriate advice is taken.
Q. I am the natural father of my son, my name is on the birth certificate but I am not married to his mother? Have I any say in his upbringing, where he goes to school, medical treatment etc.?
A. No, not automatically. You must apply to Court for a guardianship order first.
Q. I am not married to my son’s father. Am I entitled to maintenance?
A. You are not entitled to maintenance for yourself but you are entitled to maintenance for your child.
Q. How does an application for guardianship, access and custody take in the District Court and the High Court and how much does it cost?
A. Applications to the District Court in Dublin are normally dealt with within 4-5 months and our fee is generally between €700 and €1100 per application. The procedure is a little longer and a little more expensive in the Circuit Court but generally we would handle these applications ourselves and would not retain a barrister, thus keeping costs to a minimum.