Unmarried fathers unaware of guardianship

THE number of unmarried fathers in the county who are unaware of guardianship is of serious concern, according to the Clare Citizens’ Information Service.

 

“When a child is born outside of marriage, the mother has automatic sole guardianship of the child; a right denied to unmarried fathers,” said Paul Woulfe, manager of the service.

Mr Woulfe said the number of single fathers who don’t know about their rights and entitlements when it comes to their children is a huge cause for concern.
“We get a lot of queries from single fathers in relation to their rights, particularly when a relationship breaks up or is going through a stormy patch. Concerns raised include access and custody to the children, the legal obligation to pay maintenance and legal right of fathers. A lot of these callers have never heard or know about guardianship,” he said.

Guardianship means the rights and duties of parents in respect of the upbringing of their children. A guardian has the right to make all major decisions affecting the child’s upbringing, including choice of school, medical treatment, religious matters, health requirements and decisions about leaving the country.
“Married parents are automatically the joint guardians of their children. If a child is born outside of marriage, the child’s mother is the sole guardian,” Mr Woulfe explained.

Section 6A of the Guardianship of Infants Act 1964 gives an unmarried father the right to apply to be a guardian but he does not have any automatic right to be a guardian.
“Contrary to popular belief, the presence of a father’s name on a birth certificate does not bestow any rights on an unmarried father – it simply confirms paternity. The father can become a joint guardian with the consent of the mother if they both sign a Statutory Declaration in the presence of a peace commissioner or commissioner for oaths” added Mr Woulfe.

“Until 1997, a father could only become a guardian by applying to the courts, but the 1997 Children Act allows a father to become a guardian with the approval of the child’s mother by making a joint sworn declaration. The problem is that there is no record of such declarations, other than the document the couple have sworn. Currently, there is nowhere to register this form so it is important to keep it in a safe place and perhaps make an extra copy,” advised Mr Woulfe.

Where the mother is not in agreement with the father becoming a joint guardian, the father can apply to the district court to become a joint guardian with the mother of his child, whether or not his name is entered in the register of births. While the mother’s views are taken into account by the court in making a decision, the fact that she may not consent does not automatically mean the court will refuse the order sought by the father.

“The court will make its decision based on the best interests of the child and statistics show that 70% of fathers who apply for joint guardianship are successful,” Mr Woulfe said.
Where a father has been appointed a joint guardian, his consent is required for passport applications and for the adoption of the child (by the mother and her husband or by another couple). Where guardianship is not in place, these decisions do not require the consent of the child’s father.

Mr Woulfe stressed guardianship should not be confused with custody, which involves the day-to-day care of the child.
“If a father who is a guardian appoints a testamentary guardian [by a will], his wishes concerning the future of his child can only be upheld if the original statutory declaration can be traced after his death. This problem could be simply resolved by establishing a national guardianship register in which such declarations could be formally recorded,” Mr Woulfe continued.

If the parents get married subsequently, the father will automatically become a joint guardian of the child and a declaration is not necessary.

Where joint guardians cannot reach an agreement on an issue concerning the child, an application can be made to the court and the court will make a decision in the child’s best interest.
“A father who has been appointed joint guardian by a court or by statutory declaration may be removed from his position as joint guardian if a court is satisfied that this is in the best interest of the child. The only way a mother can give up her guardianship rights is by placing her child for adoption,” Mr Woulfe outlined.

He also highlighted that legal representation is not required to apply for guardianship of a child and staff in the district courts will be in a position to provide assistance to help guide couples or individuals through the process.

The Citizens’ Information Centre has information leaflets on a variety of topics that may be of interest to unmarried fathers. They can also get legal information at the weekly free legal advice clinics, which are delivered by local solicitors. They can log on to www.citizensinformation.ie, drop into the Citizens’ Information Centre, Bindon Lane, Bank Place, Ennis or call 0761 075260.