Custody of children after relationship breakdown

The breakdown of a relationship is a difficult and traumatic process. There are many issues to be worked out such as financial support, the family home, guardianship, and the access and custody of children.

• Guardianship is a person's legal responsibility to make decisions and perform duties regarding a child's upbringing.
• Access is the legal right of a child and an adult to have contact with one another when they no longer live together.
• Custody is the day-to-day care and home life of a dependent child under the age of 18.

Custody of a child can be:

• Automatic
• An agreement between both parties
• A court decision

Automatic custody

A mother who is not married to the father of their child automatically has sole custody of the child. A mother is also an automatic guardian.

Married spouses living together have joint custody and are joint guardians.

Custody by agreement

Where you and your ex-partner agree, it is possible to decide on custody arrangements for your child. You can reach agreement together yourselves, or with the help of a mediator or a solicitor. If you decide, your agreement can become a ‘Rule of Court’, by making an application to the court with the agreement included. This means that it is treated the same as a court order in contested proceedings and can be legally enforced like one.

A court decision

If you do not have automatic rights or cannot reach agreement, you can apply to the court for custody.

There are 2 main types of custody:

• Sole custody where one parent or person is appointed by the court to be responsible for the child's day-to-day care
• Joint custody where both parents or two people are appointed by the court to be responsible for the child's day-to-day care

The views of the child

When the court is deciding on a custody order, the most important factor will be the welfare of the child.

As part of the decision-making process about custody and access, the judge may order that certain reports are done to find out the views of the child depending on the age and maturity of the child. This is sometimes known as ‘the voice of the child’. If this happens, the judge may appoint an expert to write a report for the court about the child’s views and make recommendations. The report forms part of the decision-making process.

The judge must take the views of the child into account, while always focusing on the best interests of the child. The best interests of the child may not always be the same thing as what the child wants, but the child’s view will be heard.

Certain people can apply to the courts for custody of a child including:

• The parent of a child who does not have automatic custody rights, or any parent of a child when the parents cannot agree on custody arrangements. It is not necessary for a father to have guardianship before he applies for child custody.
• A relative of the child, for example, brothers, sisters, aunts, uncles, and grandparents
• A parent's spouse, civil partner or cohabitant (for at least 3 years) with whom the child resides and where they shared parenting of the child for at least 2 years
• A person who lives with the child, if they have provided the child's day-to-day care for at least a year and there is no parent or guardian willing or able to exercise the powers and responsibilities of guardianship

The Courts Service has an 'Eligibility Checker' tool you can use to see whether you are eligible to apply for custody.

Most applications for guardianship, custody and access are made in the District Court. In some situations, relating to more complex cases, an application can be made in the Circuit Court or the High Court. Each court has its own rules on how to apply for a court order.

If you are making an application for custody in the District Court, you can apply to the District Court office in the area you or the respondent is working or living in.

The person making an application for custody to the court is called the applicant. The person receiving an application is called the respondent.

The Courts Service explains the steps involved in making an application to a District Court office:

1. Consider mediation and legal advice
2. Decide where to make your application
3. Download and complete paperwork. If you cannot download a form, you can request it from your local Court office.
4. Serve the documents and provide proof of service. You must send a copy of the application to all parties.
5. Lodge documents in the court office
6. Attend court hearing

If either of you live or work in Dublin, your local office may be the Dublin District Court Family Law Office, also known as Dolphin House. The application process for people making an application in Dolphin House is different to the process for the rest of the country.

I have been served with a Notice of Application

If you have been served with a Notice of Application, it means that another person is applying for a court order. In this case, you are called the respondent. You should read the application and any included documents very carefully. The application will tell you what the other person is applying for. It will also tell you the date, time and place that the application will be heard by a judge.

You can find information to help you to prepare for attending a family law court. Family law cases are heard in camera. This means they are heard in private to protect the privacy of the family. It does not mean they are filmed or videoed.

It also can be helpful to know:

• Things you will need to do on the day of your hearing
• What happens in the court room
• Who to expect inside the court room
• What happens when your hearing ends

You have the right to appeal if you are not happy with the decision of the judge or if circumstances change. If you wish to appeal the decision, you must file your appeal documents within the relevant timelines for each court. For instance, if you want to appeal a District Court decision or order, you must file your appeal documents within 14 days of the court hearing.

Enforcement order

The court can impose an enforcement order if you have been unreasonably denied the custody the court granted you. This may include:

• Getting compensatory or additional time with the child
• Reimbursement of any related expenses
• One or both of you attending parenting programmes, family counselling or receiving information on mediation

It is always advisable to get legal advice and representation, however, you are entitled to represent yourself. The Law Society has a directory of solicitors' firms which you can search for a solicitor in your area.

To enquire whether you are eligible for legal aid, contact your nearest law centre. Legal aid is generally not free and most recipients must pay a contribution towards costs. You can download an application form for Legal Services (pdf) or you can apply for civil legal aid or advice online. If you cannot afford to pay the contribution, you can apply to the Legal Aid Board to have it waived.

The Family Mediation Service can help couples who have decided to separate to negotiate their own terms of agreement, while addressing the needs and interests of all involved. The service is free. Read more about family mediation for separating couples.

FLAC (Free Legal Advice Centres) is an independent, voluntary organisation that operates a network of legal advice clinics throughout the country. These clinics are confidential, free of charge and open to all. Contact your nearest Citizens Information Centre for information on FLAC services in your area. FLAC also runs an information and referral line for basic legal information.

FLAC has produced a series of basic leaflets on various areas of law which may be useful. These are available from your local Citizens Information Centre and from FLAC or can be downloaded from the FLAC website.

Treoir provides information on access and custody on its website.

One Family provides information and support and helpline for people parenting alone, sharing parenting and for couples separating.

Parentline is a free confidential helpline that offers parents support, information and guidance on all aspects of being a parent.