joint guardianship vs joint custody

illumi

Me and my partner who still live separately are expecting our first child soon. As we are not married he expressed his wish of having joint custody of our child, as he wants a say in our childs life. I understand where he is coming from.
I really want him to have an active part in raising our child and making important decisions with me. So I offered him joint guardianship and also said that when the child is old enough that he can take our child when he feels like it. now i thought that joint guardianship gives the father the same rights in making decisions and not joint custody. or am i wrong and it is the other way around? He got very upset with me and said he would "fight me" in court. I tried to explain that Guardianship means we both have the same rights to our child in making decisions and that custody means keeping and safekeeping the child and where the child lives and access to the child with one parent being primary custodian. or was i wrong again. anyway he thinks i am trying to take all the "power". which is just not true as I am not a person who uses a child as a weapon. I want him to have the same rights as me. But want the childs primary residence to be with me. I thought i was offering more than he asked for.. or maybe he thinks that joint custody gives him more rights. does it? help please. I am very confused atm and not to mention upset.

ResearchWill

illumi wrote: »

Me and my partner who still live separately are expecting our first child soon. As we are not married he expressed his wish of having joint custody of our child, as he wants a say in our childs life. I understand where he is coming from.
I really want him to have an active part in raising our child and making important decisions with me. So I offered him joint guardianship and also said that when the child is old enough that he can take our child when he feels like it. now i thought that joint guardianship gives the father the same rights in making decisions and not joint custody. or am i wrong and it is the other way around? He got very upset with me and said he would "fight me" in court. I tried to explain that Guardianship means we both have the same rights to our child in making decisions and that custody means keeping and safekeeping the child and where the child lives and access to the child with one parent being primary custodian. or was i wrong again. anyway he thinks i am trying to take all the "power". which is just not true as I am not a person who uses a child as a weapon. I want him to have the same rights as me. But want the childs primary residence to be with me. I thought i was offering more than he asked for.. or maybe he thinks that joint custody gives him more rights. does it? help please. I am very confused atm and not to mention upset.

Joint guardianship, means that both parents should in theory have equal say in the bringing up of the child, usuall one parent would have full custody, with access arrangements.

Joint guardinship and custody means that the parents share custody of the child, could be split week or every other week or month with arrangements for special occasions, maybe every second Christmas etc.

If the parents can agree arrangements then great, otherwise it may be necessary to involve the lawyers.

I had a friend in similar situation child was young when parents split, joint custody, it worked very well, so well then ended up back together with another child and married now.

But it can be very awkward especially at the start, mothers understandable with a new born are very careful.

If ye can agree it is of course best for both of ye and more importantly the child. Just because ye are not together does not mean ye can not do a great job of rearing a baby. Al's agree the money situation now if ye can. Be aware that circumstances change, and be willing to change the arrangements.

Try and avoid lawyers (and that from a lawyer). If ye can agree on a independent person who ye can discuss this with great. It always helps to have an independent view.

illumi

ResearchWill wrote: »

Joint guardianship, means that both parents should in theory have equal say in the bringing up of the child, usuall one parent would have full custody, with access arrangements.

this is what i was offering him. does this give him more rights than joint custody without guardianship?

ResearchWill

illumi wrote: »

this is what i was offering him. does this give him more rights than joint custody without guardianship?

You seem to be thinking of them as one or the other. Guardianship is both parents having input in children's life, school, health etc.. Custody is where does the child actually live, it would be difficult to have custody joint or otherwise without guardianship.

So the fater can have joint guardianship with access or none. Or the parents can share guardianship and custody.

If you are offering joint guardianship and access, that by definition is less than joint guardinship and custody.

Orion

You're both confusing the two. Guardianship and custody are totally separate.

Guardianship is not yours to give or take away. You can allow it easily via a declaration or he can force it through the courts - guardianship is granted in most cases almost automatically. It grants no custody guarantees whatsoever. Guardianship will give him a right to sign school/doctor forms etc and pretty much little else. It doesn't remove your right to sign those forms either.

Custody is a different matter. There is no need to go down the formal court ordered custody route if you're happy to give him access. Again this means nothing more than allowing your partner access to your joint child. It grants no further rights.

If he's willing to 'fight you in court' is he just as willing to pay maintenance? That's where the courts will step in if they are involved in it. He has no automatic right to custody or guardianship but he does have a duty to pay maintenance which the courts will enforce if he wants to go down that route.

ResearchWill

Orion wrote: »

You're both confusing the two. Guardianship and custody are totally separate.

Guardianship is not yours to give or take away. You can allow it easily via a declaration or he can force it through the courts - guardianship is granted in most cases almost automatically. It grants no custody guarantees whatsoever. Guardianship will give him a right to sign school/doctor forms etc and pretty much little else. It doesn't remove your right to sign those forms either.

Custody is a different matter. There is no need to go down the formal court ordered custody route if you're happy to give him access. Again this means nothing more than allowing your partner access to your joint child. It grants no further rights.

If he's willing to 'fight you in court' is he just as willing to pay maintenance? That's where the courts will step in if they are involved in it. He has no automatic right to custody or guardianship but he does have a duty to pay maintenance which the courts will enforce if he wants to go down that route.

Access and custody are two very different things. Custody is the custody of the child usually the mother but not always, access is the agreed formal or informal acces by the other parent to the child, every second weekend or every Saturday etc, but the child remains in the custody of the first parent. Joint custody means the child spends time living with both parents.

Guardianship is automatic in the case of married parents, in the case of un married parents a court order will be required, this can be done by agreement or contested, but as you said will usually be granted in any case.

Joint custody would in my opinion be very rare.
Se. Citizens information

Custody
Custody in Ireland refers to the day-to-day care, residency and upbringing of children who are regarded as dependant children. Dependant children in custody matters are children who are under the age of eighteen. 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/divorce and for the children to spend an equal amount of time with each parent if the parents can agree and arrange this.

Access
Access refers to the right of the parent in Ireland with whom the child does not reside to spend time with the child. It can include the right to have the child stay overnight either occasionally, on alternate weekends or during school holidays and the right for parent and child to go 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. The application can be made to the District Court or can be made in an application for Judicial Separation or Divorce in the Circuit Court.

In any application for custody or access, it is the welfare of the child that is the most important factor that a court will consider. It is a child's right to see both parents and access by the non-custodial parent will only be denied if the court believes that it is not in the best interest of the child. The court can set out the time, place and duration of access visits and can order supervised access where another adult is present during visits if it considers it appropriate.

http://www.citizensinformation.ie/en/birth_family_relationships/separation_and_divorce/separation_and_divorce_children.html

In the OP's case the father wishes to have joint guardinship and custody, which would mean he wants the child to live with him an equal amount of time as the mother. In such cases if agreed and both parents are of similar means then maintance should not be paid in that both parents are sharing custody do therefore the costs. If on the other hand one parent has a lot more income than the other maintance may have to be paid, even if custody is equally shared.

Orion

ResearchWill wrote: »

Guardianship is automatic in the case of married parents, in the case of un married parents a court order will be required, this can be done by agreement or contested, but as you said will usually be granted in any case.

A court order is not required for guardianship. You can get a Statutory Declaration notarised or witnessed by a Peace Commissioner. It requires consent of the mother. Only if consent is not granted is a court order required.

ResearchWill

Orion wrote: »

A court order is not required for guardianship. You can get a Statutory Declaration notarised or witnessed by a Peace Commissioner. It requires consent of the mother. Only if consent is not granted is a court order required.

You are correct, but i would believe that it is best to get it done in court. Less chance later of someone saying they felt forced into it etc. just being extra careful! But there is nothing stoping it being done by statutory declaration. Also such statutory declaration can only be removed by court order.

Orion

Once it's witnessed/notarised it can't be negated. Involving the courts in a consentful matter is only wasting both money and the courts time.

ResearchWill

Orion wrote: »

Once it's witnessed/notarised it can't be negated. Involving the courts in a consentful matter is only wasting both money and the courts time.

It can be negated as I stated only by court order. One of the reasons it could be set aside is if one of parties claims successfully that they did not validly consent to it. Yes I agree there is no legal reason for a court order, and many such arrangements are entered into everyday without one. But I would just rather it was done that way if it was me.

Just so I am clear I am not advising the OP to do it that way, it would just be the way I would do it. From the DJ's I know most have no problem doing such applications on consent. In my own personal experience where two friends of mine went through it they consented to it but did it by court order.

As I said in my earlier post I said try and keep the lawyers out of the situation. But at certain points it may be necessary to involve the legal system. But try to agree as much as possible yourselves.

BTW I do not think it needs to be notarized, just witnessed by a commissioner for oaths or peace commissioner. A notary charges a lot more than the other two, so would avoid going to one of them if you don't have too lol.

ResearchWill

Just to clarify things for the OP,

Guardinship, is the person or persons who make decisions for the child, automatically both parents are guardians if they are married. In the case of un married parents the mother is always a guardian unless she adopts the child. It can be agreed between the parents that the father is to be made a guardian, can be done by statutory declaration, or by consent in the DC. If there is no agreement the father can request the DC to make an order.

Custody is the parent who physically cares for the child on a daily basis, resides with the child. It is usual where parents are not co-habiting for the child to be in the custody of one parent, usually but not always the mother. Joint Custody is possible, but I would think rare.

Access is the non custody parent having access to the child, can be short term matter of hours or long term for holiday periods. If not agreed between the parents either parent can seek court orders. The non custody parent to seek the other parent to give access, or in rare cases the parent who has custody to seek that the other parent actually sees their child.

Even though the OP did not ask maintance is the amount paid by the non custody parent to the other for the maintance of the child. It can be agreed or again the courts can be asked to give orders.

James Jones

illumi wrote: »

I really want him to have an active part in raising our child and making important decisions with me. So I offered him joint guardianship and also said that when the child is old enough that he can take our child when he feels like it. now i thought that joint guardianship gives the father the same rights in making decisions and not joint custody. or am i wrong and it is the other way around? He got very upset with me and said he would "fight me" in court. I tried to explain that Guardianship means we both have the same rights to our child in making decisions and that custody means keeping and safekeeping the child and where the child lives and access to the child with one parent being primary custodian. or was i wrong again. anyway he thinks i am trying to take all the "power".

Sound like he is looking for something he actually doesn't understand.
Guardianship is the legal relationship between a parent and child. According to S.I. No. 5/1998

6. Guardianship is the collection of rights and duties which a parent has in respect of his or her child. It encompasses the duty to maintain and properly care for the child and the right to make decisions about a child's religious and secular education, health requirements and other matters affecting the welfare of the child. The exercise of guardianship rights may be agreed between parents. In the event of a dispute arising concerning the exercise of guardianship rights the court may determine the matter on the application of either parental guardian. The right to custody is one of the rights that arises under the guardianship relationship. Custody is the physical day to day care and control of a child. Even where one parental guardian has custody of a child the other parental guardian is generally entitled to be consulted in relation to matters affecting the welfare of the child.

You have said you are willing to grant him Joint Guardianship. This will take give him an equal say in decisions about education , health , religion.
Joint Custody, on the other hand, is the day-to-day care of the child. It does not give any legal rights whatsoever but implies that both parents care jointly for the child. This would imply 50/50 parenting, i.e. every second week or three days one week four days the next week and so each parent pays for the necessities for the child while the child is with them. Try and find out if he wants to be involved making decisions or if he wants to look after the child 50% of the time and not pay any maintenance.

He should also be aware that you are not trying to "Take" all the power. You already have it. it's just a question of whether you want to share it with him. Given his attitude, you need to answer this for yourself.

Gleeso_Finglas

Hi Folks,

I was wondering if any of you can help me out. My stepsons father is applying for joint custody. He is 11 years old and hates going to stay over 1 night a week. He will be devastated if his father gets joint custody.

Can anyone please give advice asap on how we can go about making sure he does not get joint custody. Its heartbreaking for us all.

Many Thanks in advance.

Sleepy

I'm pretty sure no-one can help you Gleeso_Finglas as you're effectively asking for legal advice which no-one is permitted to give on boards.

Unless his father is an actual danger to him, I can't see it being a good thing to prevent your step-son having a couple of overnights a week with his dad. Have you looked into why he hates going to stay with his Dad? Is he abusive? Or does he simply have a higher expectation of behaviour? Is he less inclined to spoil him etc.?

It's always best if these things can be sorted outside of the courts if possible so maybe a conversation between your partner and your stepson's father might be worthwhile. You may be best to keep out of this tbh. Speaking as a step-father myself, I try to leave such conversations to my wife and my stepson's Dad even though we all have a great relationship and while my input is listened to and respected, it's just not really my place to be making decisions for him.

January

We cannot give legal advice so I am closing this thread. Contact a solicitor asap.