The status of guardianship is very significant. A guardian is the person who is legally entitled and obliged to fulfil the parental rights and duties in relation to the upbringing and care of the child. This includes the duty to maintain and properly care for the child and requires the guardian to partake in the important decisions in a child’s life, e.g. education, religion and general rearing of the child. A guardian has, amongst others, responsibility to consent to medical treatment and the issuing of a passport.
A person may be an automatic guardian; may apply to be appointed as a guardian or may be appointed as a testamentary guardian.
Who is an automatic guardian?
- Unmarried mother of a child
- Married parents of a child
- Male and/or female adopters of a child under an adoption order
- The father who has been lawfully appointed a guardian in another State
Since the commencement of the Children and Family Relationships Act 2015 on January 18th 2016, the following persons will also be automatic guardians:
- Parents of a child whose marriage has been annulled since the birth of the child.
- The unmarried father who cohabits with the mother of his child from the commencement date of the Children and Family Relationships Act 2015 for a period of at least 12 months including a period of at least 3 months after the birth of the child.
- Civil partners or a cohabiting couple who have jointly adopted a child under an adoption order.
Who can apply to be appointed a guardian?
- The unmarried father can apply to the court to be appointed a guardian
- Unmarried parents can complete a statutory declaration whereby the mother agrees for the father to have guardianship status
Now that the Children and Family Relationships Act 2015 is commenced, the following persons may also apply to be appointed a guardian:
- A person aged 18 years or older who on the date of the application, is married to a parent of the child, and has shared with that parent responsibility for the child’s day-today care for a period of more than 2 years.
- A person aged 18 years or older who on the date of the application, is in a civil partnership with a parent of the child, and has shared with that parent responsibility for the child’s day-today care for a period of more than 2 years
- A person aged 18 years or older who on the date of the application, has been for over 3 years a cohabitant of a parent of the child, and has shared with that parent responsibility for the child’s day-today care for a period of more than 2 years
- A person aged 18 years or older who on the date of the application, has provided for the child’s day-to-day care for a continuous period of more than 12 months, and the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship in respect of the child.
- A relative aged 18 years or older in relation to the child means grandparent, brother, sister, uncle or aunt.
Testamentary Guardians can also be appointed through wills by an existing guardian of a child.
The Children and Family Relationships Act 2015 provides for a qualifying guardian to nominate a person to act as a temporary guardian if he/she is unable to exercise his/her guardianship rights through serious illness or injury.
A qualifying guardian is a person who is the parent and has custody of a child, or a person who is not the parent of the child but has custody of him/her.
The nomination of a person to be a temporary guardian must be in writing and must specify the rights and responsibilities that the temporary guardian may exercise.
The Courts Service provides a basic overview of some important issues arising in the context of guardianship and addresses the following questions:
- What is guardianship?
- Who can be a guardian?
- Can a father who is not married to the mother of his child become a guardian?
- Can other people apply for guardianship?
- How to make an application for guardianship
Treoir provides a useful overview of the position of parents who are not married to each other including the position of the unmarried father in relation to guardianship; appointing testamentary guardians and the process for the removal of guardianship rights.
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