Unmarried parents and guardianship

dame

embee wrote: »

I stand corrected, then.

I would imagine that the majority of unmarried parents out there haven't gone and done this though - I know myself and my boyfriend haven't.

It's something to think about. It might never be needed or may not seem important to either of you (after all you all know who the parents are, get on together, live together, make decisions together, etc) but if for some reason you were incapacitated/dead, then your parents would be the ones who would legally be responsible for and be making the decisions for your child. That may never be a problem either, so long as all parties want the same things for the child. There might come a situation though where a guardian's signature/consent is required in an emergency (eg if the child had an accident/medical emergency) and you are not available or were in the accident too.






Embee et al,

Statutory Instrument No. 5 of 1998 deals with guardianship and unmarried parents. If both parents are in agreement about the father being made a legal guardian of the child, then download and print out the form, bring it to a solicitor or commissioner of oaths together, with identification for both of you, and get your signatures witnessed.

Here's a link to the form:
http://www.operationseahorse.ie/Downloads/S.I.No._5%20of%201998.pdf
You can get it from various sources on the web, that's just one Google threw up. The link on the Treoir homepage wasn't working. You can also find it somewhere on a government website but it's harder to find that way.


EDIT:
http://indigo.ie/~kwood/guardian.htm (Another link to an easier to read version of the form)
http://www.treoir.ie/pdfs/guardianship.pdf (Treoir pamphlet on "Guardianship of Children whose parents are not married to each other").

Nevyn

I split this from the orignal thread as I felt it may not be helpful for the op but is worth while info to have in the forum.

dame

Came from http://www.boards.ie/vbulletin/showthread.php?t=2055209331

sam25

Biko,
on the link you posted http://www.citizensinformation.ie/categories/birth-family-relationships/unmarried-couples/access_to_children_and_unmarried_couples nowhere does it state that the mother is sole legal custodian of the child.Citizens advice know better than to publish a falsehood.The closest they come to it is stating the following:
"Unless there are unusual circumstances, the unmarried mother is usually granted custody of her child and the unmarried father is granted access rights"
Usually granted i.e. not hers as an automatic right.

Fact:No unmarried mother has a custody order in her hand granting her custody of the child when it's born and nor at any other time thereafter; unless she applies through the courts for it. Therefore when an unmarried father becomes a Guardian jointly of the child he in fact has an equal right to the custody of the child under section 10 of the Gaurdianship of Infants Act 1964. http://www.irishstatutebook.ie/1964/en/act/pub/0007/sec0010.html

Fact: Apart from section 8 of the above act, our written laws do not treat the unmarried father differently once as he is a guardian, read the act, check it out; although the legal system does..it is being challenged on this though.

Funny how these issues are never raised in the legal texts though or with your local friendly soilictor wha? Whoops circa 20,000/anum children born outside marriage in this country, but we'll just skip around that one! ;-)

Keep the head guys, read the law and protect your family! For too long we have sat down to this attitude that the mother automatically gets child custody as if she is entirely legally entitled to. Well she isn't if you are a Guardian jointlyand unless she has a custody order in her hand. Question everything, assume nothing!

dame

Bring child's birth cert with you when getting the form signed.

embee

sam25 wrote: »

Biko,
on the link you posted http://www.citizensinformation.ie/categories/birth-family-relationships/unmarried-couples/access_to_children_and_unmarried_couples nowhere does it state that the mother is sole legal custodian of the child.Citizens advice know better than to publish a falsehood.The closest they come to it is stating the following:
"Unless there are unusual circumstances, the unmarried mother is usually granted custody of her child and the unmarried father is granted access rights"
Usually granted i.e. not hers as an automatic right.

Fact:No unmarried mother has a custody order in her hand granting her custody of the child when it's born and nor at any other time thereafter; unless she applies through the courts for it. Therefore when an unmarried father becomes a Guardian jointly of the child he in fact has an equal right to the custody of the child under section 10 of the Gaurdianship of Infants Act 1964. http://www.irishstatutebook.ie/1964/en/act/pub/0007/sec0010.html

Fact: Apart from section 8 of the above act, our written laws do not treat the unmarried father differently once as he is a guardian, read the act, check it out; although the legal system does..it is being challenged on this though.

Funny how these issues are never raised in the legal texts though or with your local friendly soilictor wha? Whoops circa 20,000/anum children born outside marriage in this country, but we'll just skip around that one! ;-)

Keep the head guys, read the law and protect your family! For too long we have sat down to this attitude that the mother automatically gets child custody as if she is entirely legally entitled to. Well she isn't if you are a Guardian jointlyand unless she has a custody order in her hand. Question everything, assume nothing!

You need to read websites properly, sam25.

Citizens Information wrote:

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.

http://www.citizensinformation.ie/categories/birth-family-relationships/unmarried-couples/legal_guardianship_and_unmarried_couples

Look under "Rules".

I'm the sole guardian of my daughter. I am not married. It is fairly simple and straightforward. Please do not continue to post misinformation.

The Irish Statute URL you posted - you should have clicked "previous" about 5 times.

The Guardianship of Infants Act, 1964, Section 2 (Definitions) wrote:

"father" includes a male adopter under an adoption order but does not include the natural father of an illegitimate infant;

http://www.irishstatutebook.ie/1964/en/act/pub/0007/sec0002.html

and also

The Guardianship of Infants Act, 1964, Section 6, Paragraph 4 wrote:

(4) The mother of an illegitimate infant shall be guardian of the infant.

http://www.irishstatutebook.ie/1964/en/act/pub/0007/sec0006.html

No unmarried woman in this country needs to have a custody order in her hand. She IS the sole guardian of her child/children unless the father of said children has been officially declared a guardian.

That is the Constitution for you. It might not be fair, but it is the way things stand legally. Sam25, please get your information straight before posting. The letter of the law is clear as I have posted. It isn't fair, but until the law is changed, that is the way things stand and it is hugely unhelpful to unmarried parents out there who may be reading this forum to post anything other than the facts in black and white.

sam25

Embee,

I read the websites correctly. You seem to be confusing Guardianship with Legal Custody. My post centres around the latter your reply around the former.I never anywhere disputed that an unmarried mother is an automatic guardian of her child. But perhaps everbody needs reminding as to what exactly guardianship is:
Guardianship is the collection of rights and duties of a parent towards a child. It includes the duty to maintain and properly care for the child, as well as the right to make decisions about a child's religious and secular education, health requirements and other matters affecting the child’s welfare.

Automatic Guardianship does not equate to automatic sole legal custody of a child born outside of marriage. Indeed where there are two Guardians involved in a child's life then both have equal rights in deciding where the child resides primarily.The section of the Guardianship of Infants Act 1964 that i quoted from i.e. Section 10 2 (a) states that a guardian as opposed to every other person not being a guardian is entitled to the custody of his/her child.

I am aware of a recent court case where an unmarried mother claimed that she was the sole legal custodian of her child without having a custody order in her hand. This was refuted in sworn affidavit by the father/joint guardian of the child, the court concurred with the father.

Also you need to keep up with the legislation instead of selectively quoting from it. I am glad to be able to tell everybody that the term 'Father' is legally recognised by the introduction of amending legislation in the form of the Status of Childrens Act 1987 and the 1997 Children Act with the introduction of section 6A which uses the term 'Father' when referring to an unmarried father see following link http://www.irishstatutebook.ie/1997/en/act/pub/0040/sec0006.html#zza40y1997s6

Lil-buttons partner, if he is a guardian, has even greater legal standing as he has lived with the mother along with the child as per the recent 'G' case of which you may be aware.This myth is ripe for exploding in the superior courts.

sam25

Embee,

while I'm waiting for your, no doubt, considered response I would also like to point out to unmarried fathers that you are at nothing if you do not have Guardianship of your child, you are a legal stranger to your child.

The best time to get guardianship, if you have a child born outside marriage, is asap;preferably by statutory declaration to avoid the jungle of family law courts, and preferably while relations are still good with the mother. This will be the best course to ensure family harmony with your partner/ex-partner as, like or not, you now have a family regardless of whther you are still in an intimate relationship with the mother.All Family Law is primarily about encouraging family harmony by what is basically a very crude and adversarial arbitration between the parents in the form of the family law courts.
According to 2005/2006 figures over 93% of applicants for Guardianship through the courts were granted it so it is highly likely it will be granted once as you prove you are a decent and active parent.However I would again stress that to avoid court and only use as absolute last resort after all other means i.e. directly talking, written communication, counselling, mediation and solicitor agreements have all been exhausted.

Embee going back to your claim of my alleged misinformation theres also a couple more things you might consider.In the married situation joint custody i.e. the custody of the children is shared jointly under the one roof. If who gets the kids for most of the time is disputed a custody order is sought by one or both parties. Therefore are you telling me that an unmarried woman has more rights to custody of her child than a married one?
The whole misconception propagated that the unmarried mother gets the automatic legal custody of the child came about from earlier High Court, Supreme Court Cases most notably G. V. An Bord Uchtala 1980. However what every legal person prefers not to mention on this case was that there was no other Guardian involved. As pointed out earlier the change in Irish law to allow the unmarried father apply for guardianship of his child came about in 1987 under the aforementioned Status of Children Act, therefore this notion that the mother gets automatic legal custody has been allowed to grow arms and legs as no significant legal challenge has come through the superior courts to challenge this rubbish.It obviously makes good commercial sense to have one party at a supposedly significant legal disadvantage to encourage the use of the courts system.

The rates of divorce and seperation have dramatically dropped in Denmark where they have made 50/50 parenting the default, where realationships are not working.Funny that isn't it?Bet the Danish Lawyers feel a bit bit of a hole in their pockets though!

sam25

C'mon Embee still waiting for your response.If I am wrong then don't you have a duty to correct the alleged 'misinformation' as you call it for all viewers of these boards?

After all it must have shaken you a bit to realise that you don't have to scratch too deep to see the shaky legal ground of unmarried parents and even, God forbid, the mother of an unmarried child.

50 years ago the legal position was that the father was the automatic sole legal custodian of the child in the situation of a marriage breakdown. All laws and principles of same derive from older ones of course; so don't be too surprised about the not so 'black and white' nature of an unmarried mother's legal position regarding legal custody.

Looking forward to your response..

embee

sam25 wrote: »

C'mon Embee still waiting for your response.If I am wrong then don't you have a duty to correct the alleged 'misinformation' as you call it for all viewers of these boards?

After all it must have shaken you a bit to realise that you don't have to scratch too deep to see the shaky legal ground of unmarried parents and even, God forbid, the mother of an unmarried child.

50 years ago the legal position was that the father was the automatic sole legal custodian of the child in the situation of a marriage breakdown. All laws and principles of same derive from older ones of course; so don't be too surprised about the not so 'black and white' nature of an unmarried mother's legal position regarding legal custody.

Looking forward to your response..

I am not shaken in the slightest sam, sorry to disappoint you.

I stand by everything I said. KMost of what you are saying amounts to nothing more than ifs, maybes and a lot of it is "if the father is a guardian" etc. I don't think the OP at any stage said that that was the case.

Oh yes, and every child in this country is unmarried, unless some new law has come in that has entirely passed me by.

Stop jumping on what I'm saying and get back on-topic. If you have any further issue with my posts, PM me. The OP wanted advice on what she should do regarding leaving or not. She has made a decision on that as she has already posted.

Nevyn

sam25 wrote: »

C'mon Embee still waiting for your response.If I am wrong then don't you have a duty to correct the alleged 'misinformation' as you call it for all viewers of these boards?

Clearly you have no idea what the function of a moderator is here at boards.ie.
I suggest you read the charter for this forum and then newbie faq before you ended up banned.

Kildrought

There might come a situation though where a guardian's signature/consent is required in an emergency (eg if the child had an accident/medical emergency) and you are not available or were in the accident too.

This red herring comes up all the time in relation to guardianship so let me put it to bed...

If a minor needs life-saving emergency treatment that treatment will be given. There is a (non-unreasonable!) assumption that you want your child to live. Drs. will not stand around a hospital bed debating on consent while a child is in need of emergency treatment!

It is quite possible to provide a general consent form (parents of scouts do it all the time) to another adult allowing them to consent to a procedure where necessary.

Nevyn

The father of my children is not their legal gaurdian ( long story I gave him the papers he wasn't bothered) there is a letter of general medical consent from me with my contact details in the glovebox of his car and I can always be reached on the phone to give verbal consent.

LegacyUser

dame wrote: »

It's something to think about. It might never be needed or may not seem important to either of you (after all you all know who the parents are, get on together, live together, make decisions together, etc) but if for some reason you were incapacitated/dead, then your parents would be the ones who would legally be responsible for and be making the decisions for your child. That may never be a problem either, so long as all parties want the same things for the child. There might come a situation though where a guardian's signature/consent is required in an emergency (eg if the child had an accident/medical emergency) and you are not available or were in the accident too.






Embee et al,

Statutory Instrument No. 5 of 1998 deals with guardianship and unmarried parents. If both parents are in agreement about the father being made a legal guardian of the child, then download and print out the form, bring it to a solicitor or commissioner of oaths together, with identification for both of you, and get your signatures witnessed.

Here's a link to the form:
http://www.operationseahorse.ie/Downloads/S.I.No._5%20of%201998.pdf
You can get it from various sources on the web, that's just one Google threw up. The link on the Treoir homepage wasn't working. You can also find it somewhere on a government website but it's harder to find that way.


EDIT:
http://indigo.ie/~kwood/guardian.htm (Another link to an easier to read version of the form)
http://www.treoir.ie/pdfs/guardianship.pdf (Treoir pamphlet on "Guardianship of Children whose parents are not married to each other").

Hi scooby here i just won sole custody of my two kids a year ago every male i talked to before i took my ex to court said i had't a hope in hell, i told them i was going for it anyway and here i am with the roles reversed and things in my hands, i will be going to the unmarried fathers march on the ninth of april,( Good Friday ) to show my solidarity and hope to change things by been involved in further movements, go to court, fight.