Guardianship describes the legal responsibility of parents to make decisions and perform duties in relation to their child's upbringing. Married parents are automatically joint guardians of their children. Neither separation nor divorce changes this. A father who is not married to the mother of his child does not have automatic guardianship rights in relation to that child.
Custody refers to the day-to-day care, residency and upbringing of children who are regarded as dependent children. Dependent children in custody matters are children who are under the age of 18. In cases of judicial separation or divorce, one parent is usually granted custody. The children reside permanently with the parent who has custody and the other parent is granted access to the children at agreed times, which can include overnight access. It is possible for parents to continue to have joint custody of their children after separation or divorce and for the children to spend an equal amount of time with each parent if the parents can agree and arrange this.
Access refers to the right of a child to maintain direct contact with the parent with whom the child does not reside. It can include the child staying overnight either occasionally, on alternate weekends or during school holidays and for the parent and child going on holidays together.
The parents may agree informally between themselves the arrangements for custody and access to the child. In the event that agreement cannot be reached, either parent may make an application to the court to decide which parent will have custody of the child and what access the non-custodial parent will have.
How to apply
Applications for guardianship, custody and/or access can be made to the District Court or as part of an application for judicial separation or divorce in the Circuit Court. The majority of applications are made to the District Court.
Court rules regulate the procedure you must follow to obtain orders from the court. They also include the forms you must complete to make your application.
The following court forms will assist to prepare your application:
Form 58.17: Notice of application under section 11 for the court's direction
Form 58.1: Notice of application by a person to be appointed a guardian - section 6A
Form 58.30: Notice of application by an eligible person to be appointed a guardian – section 6C
Form 58.19: Notice of application under section 11b for an order giving access