The Legal Avenues Available to Non-Marital Fathers_custody legal advice

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The Legal Avenues Available to Non-Marital Fathers

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malcomsonlawsolicitors 2009-06-08 03:23:28 Publish:

The frequency of children born who are considered to fall under the term ‘non-marital’ has been on a steady rise over the past decade.

What is a non-marital father?
The definition of a 'non-marital father' is the father of a child who is not at the time of that child's birth or at any time thereafter married to the mother of that child. The presence of a father's name on their child's birth certificate does not in itself give a father the rights of guardianship, custody or access to that child. This is often misunderstood and frustrates fathers who are uncertain of what legal steps can to be taken to become more involved in the lives of their children.

Guardianship, custody and access are areas where it is advisable to obtain the advice of a solicitor, as the family courts offer several legal avenues for non-marital fathers to gain formal rights regarding their child.

Guardianship
Guardianship means having a role and a say in the education, religious, health and social affairs of a child. Non-marital fathers are not automatically guardians of their children. While the mother of such child is automatically the legal guardian, the father of a child who is not married to that child's mother must take steps to become a guardian. There are two methods by which this can be done:
1. Statutory Declaration: This is a form which can be filled in by both the father and the mother stating that both parties are the natural parents of the child and that the mother consents to the father becoming a guardian. It also declares that custody and access arrangements have been put in place. The form can be completed whether the mother and father are still a couple and live together with the child, or can likewise be used if the father and mother are no longer in a relationship. The statutory declaration can only be used if the mother agrees to the appointment of the father as a guardian. The form, once signed and witnessed, is a very important legal document and should be safeguarded in the same manner as title deeds or a will. If the mother does not consent to the father being appointed guardian, then a court application must be made.
2. Court Application: If the mother of a non-marital child refuses to consent to the father being appointed a guardian, the father can apply to the court to be so appointed. The court is not obliged to make this appointment and in considering the application will try to determine what is in the best interests of the child. In most cases the court is supportive of the father's interest in taking a more pro-active role in the life of his child. However, the child's best interests are of paramount importance and judges will make their decision with this in mind.
When a father has become a guardian the mother must obtain his consent before removing the child from the country either to live or to holiday. Furthermore, his consent must be obtained before the child can be put up for adoption. Guardianship gives the father a say into the upbringing of the child and is a very important legal right which brings with it formal legal responsibilities towards the child.

Custody & Day-to-Day Residence
The term 'custody' is emotive and has been largely replaced with the term 'place of residence'. It is important to note that just because a father is a guardian, this does not mean the child will necessarily be living with him. The court has the option of giving primary residence with the mother, the father, or jointly. This decision will be based on the best interests of the child. In the majority of cases primary residence is with the mother and the father will be given access, which can include overnight access.

In effect, it is often impractical and difficult for a child to have two places of residence, especially if there is distance between where the mother and the father reside. It is important that fathers note that if the court orders the child's place of residence with the mother, it is not because the courts believe them to be incapable of minding their child. Rather, this is done because on a practical level access visits are often better for the child in building a relationship with their father as they are not being torn between two homes.

Access
Access means spending time with the child. These visits can comprise a block of time on a specific day or might be visits which are overnight or last the whole weekend. Access arrangements can also include taking the child on a holiday or spending a week or two together in the summer. Access gives the father and child the time together to build their relationship, but it is a right of the child and not of the parent.

Courts will not deprive the father the right to build and maintain a relationship with their child unless there are serious reasons why this should happen. Even if a mother strongly opposes a father having visits with the child, the court can order supervised visitation as an alternative to preventing access. However, in certain extreme cases the court will not grant access, but this is a rare scenario as it is almost always in a child's best interests to have a relationship with his or her father.

Arrangements as to frequency and duration of visits can either be agreed upon between both parents, or in default of agreement the father can apply to the courts to gain access to his child. Furthermore, once access visits are in place and should the arrangement not work for either party, the father or mother can apply to the court to vary access and arrange a new schedule. It is important for mothers to note that once court ordered access is in place, there are strict penalties for breach of such an order.

Summary
In summary, non-marital fathers have options which can be exercised through the courts in respect of guardianship, custody and access to their children. The prospect of going to court to exercise rights can often seem daunting, but the family courts in Ireland have a relaxed atmosphere and are held in private. The court hearings as well as meetings with solicitors are completely confidential. Family court judges have extensive experience dealing with guardianship, custody and access. They work with fathers and mothers to ensure that what is in the child's best interests prevails. In what can often be a confusing process for non-marital fathers who seek guardianship and/or access, some professional legal advice can go a long way towards making the process clearer and more tangible.

Marion Campbell

Family Law Solicitor

Seeking Family Law Advice
For further information, please contact Malcomson Law by calling 01 8744422 or by filling out an Online Enquiry Form. Your enquiry will be forwarded to a solicitor who specialises in Family Law. Yahoo: The Legal Avenues Available to Non-Marital Fathers custody legal advice
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