Step Child - Guardianship question

osprey_dara

Hi,

My female partner has a teenage daughter. We all get along well and I could see a future where we all lived in the same house and play happy families.

Looking tonight on the web, I fail to see any options if my partner we to die or become incapitated that I could have legal responsibilty for the child? It seems that guardianship is only open to a parent of the child and it seems that I can't adopt her because she was born in the previous marriage.

Let's say they both were living in my house for four years. What generally happens in this case?

Regards,
Dara

January

Moving this to Legal Discussion OP, you'll get the right answers here.

ResearchWill

Maybe this may be of use, in any case you will prob need a solicitor for the deed and to give advice on any other family law issues.

7.—(1) The father of an infant may by deed or will appoint a person or persons to be guardian or guardians of the infant after his death.

(2) The mother of an infant may by deed or will appoint a person or persons to be guardian or guardians of the infant after her death.

(3) A testamentary guardian shall act jointly with the surviving parent of the infant so long as the surviving parent remains alive unless the surviving parent objects to his so acting.

(4) If the surviving parent so objects or if a testamentary guardian considers that the surviving parent is unfit to have the custody of the infant, the testamentary guardian may apply to the court for an order under this section.

(5) The court may—

(a) refuse to make an order (in which case the surviving parent shall remain sole guardian), or

(b) make an order that the testamentary guardian shall act jointly with the surviving parent, or

(c) make an order that he shall act as guardian of the infant to the exclusion, so far as the court thinks proper, of the surviving parent.

(6) In the case mentioned in paragraph (c) of subsection (5) the court may make such order regarding the custody of the infant and the right of access to the infant of the surviving parent as the court thinks proper, and the court may further order that the surviving parent shall pay to the guardian or guardians, or any of them, towards the maintenance of the infant such weekly or other periodical sum as, having regard to the means of the surviving parent, the court considers reasonable.

(7) A person under the age of twenty-one years shall be entitled to appoint guardians by will notwithstanding section 7 of the Wills Act, 1837.

(8) An appointment of a guardian by deed may be revoked by a subsequent deed or by will.

http://www.irishstatutebook.ie/1964/en/act/pub/0007/print.html#sec8

Del2005

osprey_dara wrote: »

Hi,

My female partner has a teenage daughter. We all get along well and I could see a future where we all lived in the same house and play happy families.

Looking tonight on the web, I fail to see any options if my partner we to die or become incapitated that I could have legal responsibilty for the child? It seems that guardianship is only open to a parent of the child and it seems that I can't adopt her because she was born in the previous marriage.

Let's say they both were living in my house for four years. What generally happens in this case?

Regards,
Dara

If she's a teenager now and you live together for 4 years would she not be an adult then? Or at least 17 when IIRC there are different laws.

osprey_dara

Hi,

Thanks for your replies. Ok, she's 12. Let's say her mother and I were living together for two years into the future and this is a provision that the mother wished to make.

Is there a legal method to do this? It seems so strange for me that I can't find anything that would enable this (in Ireland).

osprey_dara

And what is the idea behind banning adoption if the child was born in a previous marriage? Particularly if the father is not around and has no custody rights / nor wants them.

Peregrinus

osprey_dara wrote: »

Hi,

Thanks for your replies. Ok, she's 12. Let's say her mother and I were living together for two years into the future and this is a provision that the mother wished to make.

Is there a legal method to do this? It seems so strange for me that I can't find anything that would enable this (in Ireland).

Yes, she could. ResearchWill has quoted above the relevant provision from the Guardianship of Infants Act 1964.

Your partner can make a will nominating you as the testamentary guardian of her daughter.

If she dies while her daughter is still a minor, you will then become guardian, jointly with the girl’s father.

The father can object to this, and if you want to fight your corner you can go to the High Court. Alternatively, if he doesn’t object, but you want to be sole guardian rather than act jointly with him, you can go to the High Court.

Either way, what you will have to argue in the High Court is that the father is unfit to have custody of the child.

The court can order that you be the sole guardian, that the father be the sole guardian, or that you and he should be joint guardians (and, while they’re at it, they can make orders for maintenance as well).

But note that there’s nothing in here which can lead to you becoming sole guardian without the intervention of a court. Even if the father has been, um, inactive up to now, leaving the raising of the girl to her mother, he can seek to become more involved at any time, and he may seek to do so when the mother dies. (And, arguably, he has a responsilibility to do so in that circumstance.) There is nothing the mother can do unilaterally in her will or any other way which will freeze out the father, and leave the field clear for you to act as sole guardian. Only the High Court can do that, and then only if it’s satisfied that the father is unfit.

osprey_dara

Excellent, thanks for clearing that up about the will. I also had a read of the statute and there's some interesting things in there.

Following on a little further... how likely is the court to side with the natural father if there were a conflict, were I was the one who was actively supporting the emotional development of the child and having provided financial support and that fact that she had been living in my house? Also, how much weight does the childs preference have?

For example, following the immediate death of the mother what would happen in the short time? Would the child be allowed to stay in her habitual residence, the father be allowed to dominate the situation immediately, or a foster situation, staying with the mothers sister who lives in close proximity. Who decides?

Messy circumstances that hopefully would never happen but I'd like to know in advance.

ResearchWill

osprey_dara wrote: »

Excellent, thanks for clearing that up about the will. I also had a read of the statute and there's some interesting things in there.

Following on a little further... how likely is the court to side with the natural father if there were a conflict, were I was the one who was actively supporting the emotional development of the child and having provided financial support and that fact that she had been living in my house? Also, how much weight does the childs preference have?

For example, following the immediate death of the mother what would happen in the short time? Would the child be allowed to stay in her habitual residence, the father be allowed to dominate the situation immediately, or a foster situation, staying with the mothers sister who lives in close proximity. Who decides?

Messy circumstances that hopefully would never happen but I'd like to know in advance.

No one here can answer those questions, a good solicitor who knows all the facts of your unique situation can advice. The Act if I remember is supposed to put the child's interests first.

Del2005

Will the proposed Children's Referendum have any impact on the OPs case?

CIARAN_BOYLE

Del2005 wrote: »

Will the proposed Children's Referendum have any impact on the OPs case?

No one knows what the childrens referendum is going to be about since no one has give any indication as to the wording

Manach

Offhand and am open to correction, in that certain types of statutory declaration about custody/guardianship are not registered. If the paper copies are lost, then this might be an issue. So might wish to give them to a third party (solicitor) for safe keeping.