Leaving my Girlfriend - Child custody

LegacyUser

I am looking to leave my girlfriend of 4 years but am terrified she will go back to her native country with our daughter.
For the last year I have only stayed with her for my daughters sake. Our daughter was born in Ireland but my girlfriend is french.
Would there any way if we split that I can stop her from taking my daughter out of the country?
I will be applying for joint guardianship over the next few days.

994

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.

Removal of guardianship rights

Fathers who have been appointed joint guardians by a court or by statutory declaration can be removed from their position if the court is satisfied it is in the child's best interest. The only way a mother can give up her guardianship rights in Ireland, is if the child is placed for adoption.

Tuesday, 11 September 2007
Campaigners have welcomed the outcome of a landmark High Court case on the rights of unmarried fathers.

Today the court ruled that the rights of an unmarried father were breached after his former partner removed his children from Ireland without his consent.

The ruling has significant implications for unmarried parents in the future and has already sparked a call for a constitutional referendum.

Advertisement
The High Court has ruled that the removal of twin boys from Ireland to England was wrongful and in breach of the rights of their father.

A man known as Mr G, who was the unmarried father of two-year-old twin boys, took the action after his former partner took them to England without prior warning or consent.

In a lengthy judgment, Mr Justice Liam McKechnie ruled that the action by the mother breached the rights of the father even though the couple were not married.

Under the Constitution, unmarried fathers have no immediate right to the custody of their children.

However Judge McKechnie concluded that the boys had been resident in Ireland and the couple had lived their lives in a fashion similar to a married couple.

The court heard that the father dropped and collected his children from school and was the only contact that a local crèche had when dealing with the boys.

A District Court case in which judgment was reserved last March involved Mr G applying for custody and guardianship, Judge McKechnie said today that as of 9 March there were rights of custody as a result of the District Court application.

In line with this he said the mother's refusal to return the children was unlawful.

Mr G was represented by Michael McDowell SC who said that the issue of costs was yet to be decided. Mr G has also taken action in the English courts, a stay on proceedings had been issued to await the outcome of the High Court case in Ireland.

Some legal experts say that while the judgment does provide a framework for new legislation to safeguard the rights of unmarried parents, this particular case may not set a precedent.

So you do have some basic rights, but remember, in the end you may as well be black in the Old South - everything will be an uphill struggle if she wants to make it so, and the law will enforce the most blatantly unjust crap hiding behind "best interests".

Dudess

OP, I'm so sorry about your situation - it's an incredibly tough predicament. As 994 has demonstrated with links, in this country the ball is very much in the mother's court in cases where the parents aren't married.
It may depend on your relationship with your daughter's mother. Do you think there is a likelihood she could do this, particularly if there's bad feeling which could be further consolidated by your leaving? I'm sorry to be the bearer of gloom but this is a reality you need to consider. Or is there a possibility of things being amicable?
Get in touch with http://www.usfi.ie/ (Unmarried and Separated Fathers of Ireland), www.amen.ie (an organisation for male victims of domestic abuse - not impying anything whatsoever about your girlfriend but this organisation also deals with issues faced by estranged fathers), www.treoir.ie (another organisation for unmarried parents).

It should be a father's right to see his child, and a mother denying this is a truly appalling thing to do, but unfortunately she has the power to do so, so tread carefully.

I sincerely wish you all the best with it...

LegacyUser

Thanks for the replies. The advice was really helpful.
Yes I do believe she will most likely do this. One reason I want to leave her is she is trying already to threaten me saying if I dont move too France with her and our daughter she will take her too france without me. I dont think their is bad feeling on her part towards me other than not being able to force me too leave ireland.

Heineken Helen

Unregistered wrote: »

Thanks for the replies. The advice was really helpful.
Yes I do believe she will most likely do this. One reason I want to leave her is she is trying already to threaten me saying if I dont move too France with her and our daughter she will take her too france without me. I dont think their is bad feeling on her part towards me other than not being able to force me too leave ireland.

well why don't you move? Is your life in Ireland more important than your girlfriend and your daughter? I'm living in another country and, if anyone told me I couldn't move home, especially once I had kids... well I'm sorry but that's just controlling. Nowhere did you mention that you want full custody... you just want to stop her leaving the country with your daughter. She can't force you to leave Ireland but you want to force her to stay? Your best bet is to sort this out amicably.

The_Conductor

Under French law (a little more enlightened than us), biological parents have equal rights of custody. Were your girlfriend to attempt to exercise her right of custody- in a French court- the deciding factor would most probably be what the place of habitual residence of the child is/was. It is not unknown for an Irish court and a French court to issue conflicting rights of custody however- at which point it would be up to you to petition the French court yourself.

Both Ireland and France are now (belatedly in Ireland's case) signatories to the Hague Convention- which among other things addresses child abductions. This link may be useful to you Link

S.

holdmyhand?

Heineken Helen wrote: »

well why don't you move? Is your life in Ireland more important than your girlfriend and your daughter?

My ex moved country to be with his daughter. and while he didnt hesitate for a second, he felt it was his duty. he ended up in a country where he had no job, no income, no friends and couldnt speak the lanauge. while he was there emotionally supporting his daughter, financially he ended up not being able to keep with maintance and there for got into trouble for that. he has sorted things out now, thank god. so its not just as easy and saying yeah ok lets move, there is a lot of things to consider.



at the end of the day, you cant force her to stay, she cant force you to move. never forget, its your daughter you are trying to support, so always have her best interests in heart.

Heineken Helen

holdmyhand? wrote: »

My ex moved country to be with his daughter. and while he didnt hesitate for a second, he felt it was his duty. he ended up in a country where he had no job, no income, no friends and couldnt speak the lanauge. while he was there emotionally supporting his daughter, financially he ended up not being able to keep with maintance and there for got into trouble for that. he has sorted things out now, thank god. so its not just as easy and saying yeah ok lets move, there is a lot of things to consider.



at the end of the day, you cant force her to stay, she cant force you to move. never forget, its your daughter you are trying to support, so always have her best interests in heart.

Yeh, I'm sorry, I know it's not that simple.. this is the problem with inter-national relationships, when kids become involved if neither party want to be away from their country which is always tough in fairness, especially if you're in a foreign country and going through some kinda custody battle with your ex:o

I did mean about having the daughters best interests at heart. The op didn't give much info... so we're to presume he never attempted to live in France, while it seems that's mainly the gf's problem... she doesn't have a problem with him otherwise... so that's the main issue in the relationship? And now he wants to force her to stay in Ireland? I'm also presuming he hasn't tried to look at it from this point of view either. Perhaps I'm being over presumptious?:P

holdmyhand?

ha ha i dont think so.... i think everyone is gonna have a different view on the situation and we on the interweb are never gonna know the full story.

I was just simply telling my first hand knowledge!!!

i dont think itsa case of him wanting to force her to stay, he just doznt want his daughter whisked away to a forgein land........ after all the commute would be a bitch.

someone is gonna have to comprimise something.... i hear france is lovely.

LegacyUser

I offered to move to france but only when i'm finished my degree in university. I have two years left and think its important too finish that if only too give my daughter a good life. She will not aggree too this. Also when we got together we aggreed to live in Ireland as neither of us had any interest in living in france.
She grew up and lives in a very remote part of france so it would be very difficult for me too get a job their especially knowing no french.

holdmyhand?

well then it looks like your gonna have sit tight till your finished your degree. learn french and make the move....

and i dont think its a case of her not agreeing to you want to finish your degree... you have to finish it for the sake of your daughter and for yourslef.

but keep looking into all avenues and options re: joint custody.......

994

Heineken Helen wrote: »

well why don't you move? Is your life in Ireland more important than your girlfriend and your daughter? I'm living in another country and, if anyone told me I couldn't move home, especially once I had kids... well I'm sorry but that's just controlling. Nowhere did you mention that you want full custody... you just want to stop her leaving the country with your daughter. She can't force you to leave Ireland but you want to force her to stay? Your best bet is to sort this out amicably.

So what you're saying is that a child is the mother's property and she can do as she pleases with it? How would you feel if your husband/boyfriend just took your kid and went away somewhere and the advice was "just accept it and follow him"?

How is it "controlling" if a man doesn't acquiesce to your demand to move the child away? And are you saying that if a parent doesn't want full custody, then they don't deserve the child? Presumably by "sort this out amicably" you mean "do whatever Mademoiselle demands".

Joey the lips

I am sorry but as you see the ball is in your o/h's court on this. My wife and I refused to have kids before we were married and this was my reason why. Believe me its through

I hope all works out for you but the law is not on your side

CDfm

Unregistered wrote: »

Thanks for the replies. The advice was really helpful.
Yes I do believe she will most likely do this.

Best of luck - really the organisations that Dudess mentioned are your best shot and will help you be proactive and practical especially with court issues.

Heineken Helen

994 wrote: »

So what you're saying is that a child is the mother's property and she can do as she pleases with it? How would you feel if your husband/boyfriend just took your kid and went away somewhere and the advice was "just accept it and follow him"?

How is it "controlling" if a man doesn't acquiesce to your demand to move the child away? And are you saying that if a parent doesn't want full custody, then they don't deserve the child? Presumably by "sort this out amicably" you mean "do whatever Mademoiselle demands".

No that's not what I'm saying at all... I'm looking at both sides of this. His gf is living in a foreign country... and she's about to be broken up with... it's likely she'll move home... wouldn't many people? Why stay in a foreign country locked in a custody battle with likely no family???

By sort it out amicably... I mean just that! Since the court will likely favour the mother... it's in the op's best interest to keep this friendly. I'm trying to help him. You, on the other hand, would suggest what other than sort it out amicably? An amicable solution is in everybody's best interest, most importantly the kids.

Heineken Helen

Unregistered wrote: »

I offered to move to france but only when i'm finished my degree in university. I have two years left and think its important too finish that if only too give my daughter a good life. She will not aggree too this. Also when we got together we aggreed to live in Ireland as neither of us had any interest in living in france.
She grew up and lives in a very remote part of france so it would be very difficult for me too get a job their especially knowing no french.

is there any chance of a compromise? Like if she moves to France, it's to a nearby city... somewhere that makes it easier for you and her. If I was moving home and my bf said 'I'll only move to Ireland if it's to Dublin or Galway' I'd say 'well ok then'.

CDfm

Heineken Helen wrote: »

No that's not what I'm saying at all... I'm looking at both sides of this. His gf is living in a foreign country... and she's about to be broken up with... it's likely she'll move home... wouldn't many people? Why stay in a foreign country locked in a custody battle with likely no family???

By sort it out amicably... I mean just that! Since the court will likely favour the mother... it's in the op's best interest to keep this friendly. I'm trying to help him. You, on the other hand, would suggest what other than sort it out amicably? An amicable solution is in everybody's best interest, most importantly the kids.

Really - not in all cases. A child is not a piece of property.

The court will look for the least upset to the child but also can restrict a child being moved out of its jurisdiction until access and custody matters are handled.If it was me I would want it to be heard in Ireland and the child not moved until access was sorted.

France signed up to the Hague convention etc so it has to respect that.

Amicable is best but cross border needs to be enforceable and amicable needs to deliver that which it can't.Like it or not a French Court will have a French bias towards the Irish peasant.

Now Ireland has an appalling record enforcing Fathers rights but what limited rights you have avail of and enforce.

CDfm

Heineken Helen wrote: »

is there any chance of a compromise? Like if she moves to France, it's to a nearby city... somewhere that makes it easier for you and her. If I was moving home and my bf said 'I'll only move to Ireland if it's to Dublin or Galway' I'd say 'well ok then'.

The thing is unequal and thats not at all healthy.

The original plan was to qualify etc. Realistically what are the options - if the OP goes he will probably be unemployable at the bottom of the unskilled labour heap and if he stays he wont be able to avail of access financially and his "rights" will effectively expire.

So I can understand how the mother may use the child as a pawn to achieve what she wants. Very stressful for OP.