If you need to discuss a maintenance and access, contact:
John G. Murphy
Maintenance refers to the responsibility of separating couples to support each other and their children financially.
Access refers to the right of a parent or guardian who doesn’t live with their child to spend time with them. It is always best to think of this from the child’s viewpoint and best interest. It is not about ‘scoring points’.
In situations of separation or divorce, the couple can make informal agreements regarding maintenance. This can work well where both parties are reasonable and fair - but it is difficult to assess informally how much maintenance should be paid. Mediation can help to resolve this. Both parties can then sign an agreement which can later be made a rule of court.
If the parties cannot agree upon maintenance, either party can apply to court for a maintenance order. Maintenance can be awarded to a spouse/civil partner for their own benefit and/or for the benefit of a dependent child who is under the age of 18, or 23 if the child is in full-time education. If the child has a mental or physical disability to such a degree that it will not be possible for the child to maintain him/herself fully, then there is no age limit for seeking maintenance for their support.
Each party must disclose their finances to the court and the judge will consider all of the family's circumstances when making a maintenance order.
Usually, married parents have joint custody of children but with one parent’s home being the habitual residence for the children and with the other parent being granted access. In unmarried situations, it is usual for the mother to have custody but the father can be granted guardianship and access.
Generally speaking, the courts will encourage parents to support a child’s access to each other and will always consider the best interests of the child.
Custody is having the responsibility for the day-to-day care of a child.
Where married parents have separated or divorced, usually both parents have joint custody of children but with one parent’s home being the habitual residence for the children and with the other parent being granted access.
Where parents were never married, in Ireland the mother has automatic sole custody of the child. However, it is usual that both parents agree to have joint custody of children on an informal basis. If this agreement cannot be reached, the father can apply to the District Court for joint or sole custody.
If parents who aren’t living together can’t agree on access terms for their children, we always advise that the parents attend mediation together to try to come to a satisfactory arrangement. If the parents cannot reach an agreement in this way, either parent may apply to the District Court for an Access Order to regulate access. The court will set the time, place and duration of access.
As with all cases involving children, any decision made by the court will be made in the best interests of the child and the court will sometimes consider the views of the child given his/her age and understanding.
We can represent you in reaching an access agreement, or in Court, in the best interests of the children.
Guardianship in Ireland means that you have a duty to maintain and properly care for the child and you have a right to make decisions about the child's religious and secular education, health requirements and general welfare.
Married parents of a child are joint guardians and have equal rights in relation to the child.
For children born outside of marriage, only the mother has automatic rights to guardianship. (Even though a father's name may be registered on the child's birth certificate, this does not give him any guardianship rights in respect of his child).
An unmarried father will automatically be a guardian if he has lived with the child's mother for 12 consecutive months after 18 January 2016, including at least 3 months with the mother and child following the child's birth.
If the mother agrees, the father can become a joint guardian if both parents sign a Statutory Declaration. This must be signed in the presence of a Peace Commissioner or a Commissioner for Oaths (all practising solicitors can do this). It states the names of the parents of the child, that they are unmarried and that they agree that the father should be appointed as a joint-guardian. The declaration also states that the parents have agreed arrangements regarding custody of and access to the child. Therefore, guardianship does not imply automatic custody or access.
If there is more than one child, a separate statutory declaration should be made for each.
If the mother doesn’t agree to guardianship, the father must apply to the court to be appointed as a joint-guardian. While the mother's views are taken into account, the fact that she does not consent to the guardianship application does not automatically mean that the court will refuse the order sought by the father. Instead, the court will decide what is in the best interest of the child.
As well as fathers, certain other people may apply to the court for guardianship:
- A step-parent, a civil partner or a person who has cohabited with a parent for not less than 3 years may apply where they have co-parented the child for more than 2 years.
- A person who has provided for the child’s day-to-day care for a continuous period of more than a year may apply for guardianship if the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship.
- A parent can nominate a temporary guardian who can be appointed by the court if the parent is suffering from a serious illness or injury which prevents them from exercising their guardianship responsibilities in respect of their child.
- A grandparent.