Guardianship Issue

Obelisk29

Hi,

First of all I’m not looking for legal advice – just, perhaps, some pointers to on-line resources, etc.

A family member is going though a very acrimonious split at the moment and he and his partner have a six month old child. He is currently considering looking for legal guardianship.

My (limited) understanding is that under Irish law, as an unmarried father, he basically has very little absolute right to guardianship, should his ex-partner decide that she doesn’t want him as guardian.

What kind of grounds could she use to prevent him being granted guardianship – lack of contribution to family home, verbal abuse and bullying, anger management issues and generally being a sh1t?

I also assume that should things get dirty and end up in the family courts, the only winners will be the solicitors!

o29

ChickCool

i think its extremely unlikely he could get guardianship if she didnt want it and to be honest she wouldnt give someone shes split from guardianship unless its in the case of her death.there is a difference between access and guardianship.if he is an active and contributing parent,ie pays proper maintenance contributes to the childs standard of life and is very involved and theres no ill will over the break up then she would probably let him have legal access and if she doesnt and he seems like a good father then the courts would be in favour of this but its an uncomfortable route to go down and it would badly damage the relationships and definitely wouldnt do the child any good.id suggest treoir or the lonee parent organistaion who could probably help with the legal rights and maybe counselling/mediation for the parents.

i would say though an unmarried father can forget about guardianship

vms7ply9t6dw4b

ChickCool wrote: »

i think its extremely unlikely he could get guardianship if she didnt want it and to be honest she wouldnt give someone shes split from guardianship unless its in the case of her death.


i would say though an unmarried father can forget about guardianship

Wow, so many things about what you just said really anger me...:mad:

If the mother wants to be difficult about it the father can go through the courts and once he can prove he is the father the only way they wouldnt appoint him a guardian is if it was in the best interests of the child for them not to. What the mother wants doesnt come into it.

Once he agrees to pay maintenance and it isnt in the best interests of the child for him not to be he will be given access and appointed a legal guardian but again she can be difficult about it and drag it out which is sad considering the only person really loosing out is the child.

ChickCool

maybe you shoudl read what i said again :rolleyes:

its not in the interest of the child to go through the courts, the childs interest must come first. As suggested i think treoir or the lone parent group would be the people to talk on the legal issues.

I know a girl who recently became a single mum, her and the ex went to treoir together and they said it would be virtually impossible for him to become a guardian if she didnt want it and once she was taking proper care of the child

Nevyn

Can we stop the my friend was told by somebody that rumour mongering please.

http://www.citizensinformation.ie/categories/birth-family-relationships/unmarried-couples/legal_guardianship_and_unmarried_couples

If a child in Ireland is born out outside of marriage, the mother is the sole guardian. The position of the unmarried father of the child is not so certain. If the mother agrees, the father can become a joint-guardian if both parents sign a "statutory declaration". The statutory declaration (SI 5 of 1998) must be signed in the presence of a Peace Commissioner or a Commissioner for Oaths.

This declaration states the names of the parents of the child, that they are unmarried and that they agree that the father should be appointed as a joint-guardian. The declaration also states that the parents have agreed arrangements regarding custody of and access to the child. If there is more than one child, a separate statutory declaration should be made for each.

However, if the mother does not agree to sign the statutory declaration or agree that the father be appointed as joint guardian, the father must apply to the court to be appointed as a joint-guardian. You do not require legal representation to do this, you can make the application on your own behalf. Apply directly to the the District Court and contact the clerk of the court to institute proceedings. (This is possible, irrespective of whether your name is on the child's birth certificate or not). Statistics from 2004 show that 70% of the 1,237 unmarried fathers who applied for guardianship had orders granted in their favour.

While the mother's views are taken into account, the fact that she does not consent to the guardianship application does not automatically mean that the court will refuse the order sought by the father. Instead, the court will decide what is in the best interest of the child.

In situations where the father has been appointed joint guardian of a child, then his consent is required for certain things relating to the child's general welfare and other items. (For example, for passport applications for the child). Read more about passports for children of unmarried parents here (pdf). The father's consent is also required for the adoption of the child by another couple (or by the mother and her husband). Read more about adoption here.

http://www.treoir.ie/

Since l976 Treoir has been providing accurate, confidential and free information to parents
who are not married to each other and to those involved with them.

The National Information Centre
LoCall 1890 252 084

info@treoir.ie

He does not have the automatic right to guardianship as given to married men who become fathers. He can apply for gaurdianship which makes him the childs gaurdian and gives him some rights and responsiblities under law to the child.

http://acts.oireachtas.ie/print/zza7y1964.1.html

Serveral people can be appointed guardianship of any child at any time.


I would suggest that if possible himself and his partner try mediation.
http://www.citizensinformation.ie/categories/birth-family-relationships/separation-and-divorce/family_mediation_service

Guardianship is completely separate from maintenance, visitation and custody.

ChickCool

wasnt meaning to rumormonger if im wrong im sorry but in answer to the question this was the situation as far as i knew due to seeing people go through it

K-9

Obelisk29 wrote: »

Hi,

First of all I’m not looking for legal advice – just, perhaps, some pointers to on-line resources, etc.

A family member is going though a very acrimonious split at the moment and he and his partner have a six month old child. He is currently considering looking for legal guardianship.

My (limited) understanding is that under Irish law, as an unmarried father, he basically has very little absolute right to guardianship, should his ex-partner decide that she doesn’t want him as guardian.

No, as Thaedydals links show, he has the right if he so wishes to apply to court and the Judge decides. Something like 96% of cases that go to the judge are actually awarded, often against the Mothers wishes.

obelisk29 wrote:

What kind of grounds could she use to prevent him being granted guardianship – lack of contribution to family home, verbal abuse and bullying, anger management issues and generally being a sh1t?

If directed at the child yes, the Judge will decide in the childs best interest and tries to avoid details of fighting between the parents, unless warranted.

obelisk29 wrote:

I also assume that should things get dirty and end up in the family courts, the only winners will be the solicitors!

o29

Not necessarily, he can ring the District court clerk and start proceedings and represent himself, as indeed the mother can.

ChickCool wrote: »

i think its extremely unlikely he could get guardianship if she didnt want it and to be honest she wouldnt give someone shes split from guardianship unless its in the case of her death.

Unfortunately Mothers often look at it that way, which IMO is wrong. They should be looking at it from the childs viewpoint, not hers.

Guardianship gives him rights and responsibilities over matters regarding the childs welfare, such as health and education, adoption, religion etc. It also gives him the right to object if the mother wants to move abroad and his signature is required for the passport.

Bear in mind, Guardianship is rarely an issue if granted.

chickcool wrote:

there is a difference between access and guardianship.if he is an active and contributing parent,ie pays proper maintenance contributes to the childs standard of life and is very involved and theres no ill will over the break up then she would probably let him have legal access and if she doesnt and he seems like a good father then the courts would be in favour of this but its an uncomfortable route to go down and it would badly damage the relationships and definitely wouldnt do the child any good.id suggest treoir or the lonee parent organistaion who could probably help with the legal rights and maybe counselling/mediation for the parents.

i would say though an unmarried father can forget about guardianship

Again ill feeling will not really come into it unless it's really bad, remember often the ill feeling is on both sides! Access also will be granted legally to the father regardless, unless there are sound reasons not too.

Court is indeed uncomfortable and often makes things worse. The Statutory Instrument Thaedydal referred to should be used in most cases.

If he is a good father this should be used and if it is not being signed by the mother, I'd say she actually isn't acting in the childs interest. It's an important thing for an unmarried Dad to have and indeed the child too!

ChickCool wrote: »

maybe you shoudl read what i said again :rolleyes:

its not in the interest of the child to go through the courts, the childs interest must come first. As suggested i think treoir or the lone parent group would be the people to talk on the legal issues.

a girl who recently became a single mum, her and the ex went to treoir together and they said it would be virtually impossible for him to become a guardian if she didnt want it and once she was taking proper care of the child

I'm shocked Treoir would give that advice, though I'd suspect you are getting the girls side. I'd expect Treoir to have told them about the Statutory Instrument. If that was the advice they'd gave, I think they may actually contribute to the chances of court down the road. He will more than likely find out the true position and then ask for it, if she's under the impression that it's under her gift it could well cause unnecessary conflict.

I'm actually starting to think they where talking about custody not guardianship, hence the mention of proper care of the child.

Don't worry about misinformation. It's very common about it and unfortunately that seems to make it appear a bigger deal than it really is!

Nevyn

Part of guardianship is medical guardianship, that if a Dad doesn't have medical guardianship it can complicate issues in a medical emergency.

ChickCool

maybe the advice they gave was particular to the situation,i dont want to go into it but the guy was in means a human nevermind a father.he didnt pay maintenance and refused to then left the country without any details to avoid getting into trouble for it.there was no question of custody,it was definately guardianship.

to clarify i wasnt saying it was my opinion that mothers shouldn't give access, i was saying there is very little incentive to a woman to guardianship.you can still be a parent without being a guardian.im not sure that out of any of the unmarried parents i know are any of the men guardians-i dont think any are.id know maybe 7 or 8 unmarried parents

K-9

Thaedydal wrote: »

Part of guardianship is medical guardianship, that if a Dad doesn't have medical guardianship it can complicate issues in a medical emergency.

I don't know about that one. Would a doctor refuse life saving treatment just because a Guardian isn't there?

ChickCool wrote: »

maybe the advice they gave was particular to the situation,i dont want to go into it but the guy was in means a human nevermind a father.he didnt pay maintenance and refused to then left the country without any details to avoid getting into trouble for it.there was no question of custody,it was definately guardianship.

But if the mother was unfit, a Dad would be looking for custody, not Guardianship. The advice they gave in that situation seems right, but they are exceptional cases.

chickcool wrote:

to clarify i wasnt saying it was my opinion that mothers shouldn't give access, i was saying there is very little incentive to a woman to guardianship.you can still be a parent without being a guardian.im not sure that out of any of the unmarried parents i know are any of the men guardians-i dont think any are.id know maybe 7 or 8 unmarried parents

Indeed, but that's completely the wrong way to look at it. This isn't about what's in it for the mother, its what's in it for the child. If he isn't Guardian he's a legal stranger and God forbid the mother dies, he still is until he applies for it.

Men often don't realise the lack of rights they have. I don't blame mothers for the protectiveness over Guardianship, the law makes it a me v. him battle and the mother holds the cards.

Anyway, I'd say in any new review of family law, it will be automatic. It's a waste of court time awarding it 96% of the time. Would be better dealing with the 4% and taking it away!

OP try http://www.solo.ie for good advice.

LolaDub

This is pretty interesting. I received similar advice to what chickcool was talking about from treoir. I had a poor/non existent relationship with my daughters father when she was born and in no way wanted him to have any rights over her, i wasn't going to stop him seeing her if he chose to be a part of her life but definitely didn't want him a guardian. Anyhow they told me if i didn't want it (had reasons) that it would be virtually impossible for him to get it.

I'm surprised at the above stats that 70% of fathers who apply got it, i thought it would be much smaller than that. I wonder out of unmarried fathers what are the stats for out of court guardianship, ie no dispute, the men not wanting guardianship and the applications. Is there only a small amount applying?

I think the unfit mother thing the earlier poster was reffering to was it would be a different kettle of fish if it was an unfit mother?

LolaDub

Seanies32 wrote: »

Anyway, I'd say in any new review of family law, it will be automatic. It's a waste of court time awarding it 96% of the time. Would be better dealing with the 4% and taking it away!

OP try http://www.solo.ie for good advice.

Ugh wrote a big thing and deleted it because my point is simple. The court system is there to do the just thing, Unmarried parents having children can be quite a complicated thing, while on the most part the courts are awarding guardianship, there is still number of men not getting it and i would think the courts have good reason. Perhaps having fathers apply for it who want it is a better situation than having mothers having to apply to get it revoked?

K-9

LolaDub wrote: »

This is pretty interesting. I received similar advice to what chickcool was talking about from treoir. I had a poor/non existent relationship with my daughters father when she was born and in no way wanted him to have any rights over her, i wasn't going to stop him seeing her if he chose to be a part of her life but definitely didn't want him a guardian. Anyhow they told me if i didn't want it (had reasons) that it would be virtually impossible for him to get it.

Yeah, but they'd need to be concerns relating to the child, not your relationship with the ex. Remember the Mother is just as likely to have bad feelings for the Dad!

LolaDub wrote:

I'm surprised at the above stats that 70% of fathers who apply got it, i thought it would be much smaller than that. I wonder out of unmarried fathers what are the stats for out of court guardianship, ie no dispute, the men not wanting guardianship and the applications. Is there only a small amount applying?

There was a thread on the Parenting board where I posted saying the 70% is incorrect. It's 96% of cases before the Judge. This was based on Treoir statistics and not the unreliable Citizens Information site.

Some are withdrawn for various reasons. Sure, some probably would be told by a solicitor forget it, also some may just drop the case, some may get it through the Statutory Instrument, some would be struck out for legal reasons, time etc. I withdrew mine because I got back with ex, so to assume all withdrawn cases are because they wouldn't get it, is wrong. I got mine later without the Mother being in Court, obviously she could have appealed if she so wished.

LolaDub wrote:

I think the unfit mother thing the earlier poster was reffering to was it would be a different kettle of fish if it was an unfit mother?

Well, if they are both unfit, he still wouldn't get it!

LolaDub wrote: »

Ugh wrote a big thing and deleted it because my point is simple. The court system is there to do the just thing, Unmarried parents having children can be quite a complicated thing, while on the most part the courts are awarding guardianship, there is still number of men not getting it and i would think the courts have good reason. Perhaps having fathers apply for it who want it is a better situation than having mothers having to apply to get it revoked?

There are many reasons granting it when say, the birth cert is signed, could be good. More attention could be given to the 4% and why they are unfit. Don't want to go off topic, but why waste the courts time with the 96%?

Again and it's very important to remember, Guardianship means little in everyday matters. There nearly is a hysteria about it!

It rarely is an issue when granted, so why the fear about it from Mothers?

oeb

Obelisk29 wrote: »

Hi,

First of all I’m not looking for legal advice – just, perhaps, some pointers to on-line resources, etc.

A family member is going though a very acrimonious split at the moment and he and his partner have a six month old child. He is currently considering looking for legal guardianship.

My (limited) understanding is that under Irish law, as an unmarried father, he basically has very little absolute right to guardianship, should his ex-partner decide that she doesn’t want him as guardian.

What kind of grounds could she use to prevent him being granted guardianship – lack of contribution to family home, verbal abuse and bullying, anger management issues and generally being a sh1t?

I also assume that should things get dirty and end up in the family courts, the only winners will be the solicitors!

o29

Ok, basicially the situation is thus,
As an unmarried father, he has no 'Automatic' rights.

That being said however, if she is willing to sign guardianship papers, it's as simple as printing them out, and getting them witnessed by a whatcha call it (one of those professional witness guys. Not jehovas, the legal ones, justice of the peace or something). Then you just leave a copy with your solicitor for the record. (This can also be done in court).

If she objects to the guardianship, it can be taken to court. Providing you meet a judges conditions (Normally offering what he thinks is a reasonable ammount of child support, etc) it is very rare that he will deny guardianship rights. The only thing that would get in the way of it would be if she was to attack your charachter (Saying you are a drug dealer, that you beat her/the kid, that kinda lark).

So assuming that you have a clean slate when it comes to that kind of thing, and she is not the kind of person who will lie about it, then joint guardianship is pretty easy to get. (I was lucky enough that she just agreed to sign the papers without court)

K-9

oeb wrote: »

(I was lucky enough that she just agreed to sign the papers without court)

Indeed, OP I'd tell them about this procedure. If there was a chance the Mother would do this, or do it in the near future, I'd wait and avoid Court if possible.

Nevyn

Seanies32 wrote: »

I don't know about that one. Would a doctor refuse life saving treatment just because a Guardian isn't there?

They will treat the child on the spot and will stabilise them but when it comes to decisions and signing medical consent forms then it is a guardian of the child that is needed.

MojoMaker

LolaDub wrote: »

i wasn't going to stop him seeing her if he chose to be a part of her life but definitely didn't want him a guardian.

Why not? Why deny a man legal status with his own flesh and blood?

Anyhow they told me if i didn't want it (had reasons) that it would be virtually impossible for him to get it.

Thankfully the law isn't as arbitrary as this otherwise unmarried fathers would be at the complete whim of mother's 'feelings'.

A good father that wants to be properly involved should be granted guardianship in all cases. To conclude otherwise would be a disgrace. A child isn't anyone's property and the sooner Mom's realise this the better.

LolaDub

mojomarker how dare you insinuate that i'm a bad mother because i didn't want someone having guardianship of my child. You have no idea who i am or who he was and why i felt that way. I've said in my post i had my reasons, i'm not going to explain them because you're insulting me and assuming because an unmarried father is a father it makes him a good father. Wake up and realise good fathers will rarely have problems, the bad ones will and they should. People can't stamp all over a child because they have biology on their side.

Nevyn

If you have an issue with a post report it, do not respond in thread as it will be off topic.
Unhelpful and off-topic posting will get you banned from this forum.
Do take time to read the charter which contains the rules and abide by them.
Have a nice day.
Thaedydal

K-9

Thaedydal wrote: »

They will treat the child on the spot and will stabilise them but when it comes to decisions and signing medical consent forms then it is a guardian of the child that is needed.

What if they can't stabilise them? I'm not sure what the position is, but I think you need to be clear as there is a lot of scare mongering about this.

MojoMaker wrote: »

Why not? Why deny a man legal status with his own flesh and blood?



Thankfully the law isn't as arbitrary as this otherwise unmarried fathers would be at the complete whim of mother's 'feelings'.

A good father that wants to be properly involved should be granted guardianship in all cases. To conclude otherwise would be a disgrace. A child isn't anyone's property and the sooner Mom's realise this the better.

I don't think Loladub disagrees with that from her posts!

Nevyn

If a Dad who does not have guardianship has the kids then under law it is the same as a scout/youth leader, or teacher on a school trip, he is an adult who has been charged with the care of the child and tbh he would need a consent form from the mother in case of a medical emgerncy just like scout/youth leader, or teacher on a school trip.

Yes the mother can usually be reached on the phone and give verbal consent until she arrives in person to sign forms but life is complicated and there may be a delay.

metrovelvet

Thaedydal wrote: »

They will treat the child on the spot and will stabilise them but when it comes to decisions and signing medical consent forms then it is a guardian of the child that is needed.

Do you mean as in cases of euthanasia, blood transfusions, and dnrs?

LegacyUser

I was with my partner at the solicitors, we were there to get our wills drawn up, we are a couple but he wasnt guardian of our child at the time, the solicitor asked did we want help getting the form drawn up for guardianship and did tell us that only the guardian can make medical decisions. We didnt go into too much detail at time as he was going to be made guardian anyway.
However, My understanding of it was that medical decisions cannot be made for most
non-emergency cases without permission from guardian
Obviously in an emergency the doctors do every thing they can but I think its decisions such as new treatments that havent been very widely used before or the switching off of life machines or maybe blood transfusions?? that need a guardians decision.
These situations are unlikely to apply because the other guardian would more than likely have time to get to the hospital when these decisions need to be made.

Also i dont know if this will help but I know in some countries say for example if you were going abroad with your friends child and the childs guardian was not going with you then you are legally obliged to obtain a letter from the guardian giving you permission for medical consent, I dont know if anything like this is legal here but for my peace of mind when my child was a baby and staying at grandparents home for night i always popped a letter into changing bag

paperclip2

Sorry for piggybacking on the OP's question but it is related to guardianship.:o

Can more than two people be appointed guardians? Also if they aren't blood relatives of the child what is the legal procedure?

Thanks.

Nevyn

Yes more then two people can and they don't have to be blood related.
The exact same proceedure and form is used as when granting an unmarried father gaurdianship.

paperclip2

Thanks Thae.

LolaDub

I think a mother can appoint whoever she wants as a guardian or if parents are married they would both gve their consent. As thae says for medical emergencies its something to heavily consider.

In my case he left the country to avoid being caught for refusing to pay maintenance and i haven't heard from him since and have no contact details for him so obviously iw ould not give someone like that guardianship of my child.

K-9

LolaDub wrote: »

I think a mother can appoint whoever she wants as a guardian or if parents are married they would both gve their consent. As thae says for medical emergencies its something to heavily consider.

If a child needs life-saving emergency treatment I can't see it being withheld. There would be an assumption that you want your child to live. Doctors will not stand around waiting for a Guardian while a child is in need of emergency treatment.

There have been cases with Jehovah Witnesses where the Doctors went on ahead with treatment, despite the Guardians objections.

Still, maybe a note saying you consent to life saving medical treatment could be given to the Father, though it may get lost or forgotten in an emergency!

Loladub wrote:

In my case he left the country to avoid being caught for refusing to pay maintenance and i haven't heard from him since and have no contact details for him so obviously iw ould not give someone like that guardianship of my child.

In that case if he had been Guardian, you can apply and get him removed quite easily.

LolaDub

It was early days so we were only registering the birth when this came up and he maintained that as we were broken up and i didn't have an abortion therefore the responsibility of the baby was all mine and he refused to pay for my 'choices'. When he found out he had a legal obligation to contribute he legged it.

I didn't realise you could apply for guardianship to be revoked, so thanks for that little piece of info! I wonder what the figures are on that?

mountainyman

Your brother should get the guardianship forms and talk to the mother about signing them.
If that doesn't work he should apply to the family court to be appointed a guardian.

It might be an idea to put it together with a maintenance and access agreement at the same time.

That said the main utility of guardianship is in the event of the mum's death it does not have much here and now application and certainly doesn't put the custodial and non custodial parent on an equal footing.

Your brother should pay a reasonable amount in maintenance anyway, as a moral duty. For his own sake he should do this in a way that leaves a paper trail.
MM