When Questions Arise
Questions of custody and access may be determined in standalone applications under the Guardianship of Infants Act. They may also arise in the context of judicial separation and divorce proceedings.
Preliminary orders may be made for custody and access in the pre-trial stages of judicial separation and divorce proceedings. Other questions affecting the welfare of the child may also be determined.
In granting a decree of separation or divorce, ancillary orders can be made in relation to custody and access. In highly exceptional circumstances, the courts may declare one or other spouse unfit to have custody.
Custody & Access Dispute
Custody and access disputes between parents may be determined in standalone applications to the District Court. Where the parents are separated, one parent will usually be granted custody while the other is granted access.
Joint custody is possible where the circumstances permit it. This may occur if the parents live close by and it is not unduly disruptive. Joint custody may not work satisfactorily in many types of cases. A high degree of cooperation between parents will be required.
Agreements in relation to custody may be subject to a court order and enforceable accordingly.
Welfare is Paramount
In any proceedings before a court relating to the custody, guardianship or upbringing of a child; the administration of property belonging to or held in trust for the child; or the application of that property’s income, the welfare of the child is the first and paramount consideration. It is to be the decisive factor.
The courts have stated that this means more than the child’s welfare simply being at the top of a list of considerations. It implies a process whereby all the relevant facts, circumstances, claims and choices are weighed and the course that is followed is that which is most in the interests of the child’s welfare.
Welfare includes religious, moral, intellectual, physical and social welfare. They should be considered globally. Social welfare refers to the child in society. Physical welfare concerns health, comfort, hygiene and nurture. Intellectual welfare concerns education. Moral welfare consists of religious or similar values. Religious welfare relates to the practice of religion.
The conduct of the parent in relation to the child is a relevant factor. Conduct in the context of the breakdown of a marriage or relationship is not necessarily the same thing. An award of custody is not a reward for good behaviour nor is its denial a punishment for bad behaviour.
Where a child is in a stable situation the courts may be unwilling to disturb it, notwithstanding that the parent’s conduct sets a poor example. It has been stated that the conduct of the parent is only relevant in so far as it affects the welfare of the children. However, a parent’s conduct may set an example which may be relevant in terms of the court’s assessment of the child’s overall welfare.
In principle, there is no discrimination between parents on the basis of sex or gender. However, courts have traditionally favoured the mother in the case of young children unless there are other considerations affecting the welfare of the child. The rule is not a legal one, but one which the courts traditionally stated expressed common experience. In more recent times, the courts are less inclined to assume that the welfare of the child necessarily lies with the mother’s custody.
The Guardianship of Infants Act requires the court to decide as it thinks appropriate and practicable, having regard to the age and level of understanding of the child when considering their wishes.
The Guardianship of Infants Act was amended in 2015 to restate the provisions regarding the best interests of the child. It sets out a list of factors that the Court may take into account when determining the best interests of the child. The factors include:
- the benefit to the child of having a meaningful relationship with each parent;
- the child’s views, where ascertainable;
- the physical, psychological or emotional needs of the child;
- the child’s religious, spiritual, cultural and linguistic upbringing and needs;
- the child’s social, intellectual and educational upbringing and needs;
- proposals made for the child’s custody, care, development and upbringing and for access to and contact with the child;
- the capacity of each person for whom an application is made under the Act to care for or meet the child’s needs.
The Court is to have regard to family violence and its impact or likely impact on the safety of the child, other members of his family and the child’s personal wellbeing.
The Court has the option to seek a report in writing from an expert on the welfare of the child. It may appoint an expert to determine and convey the child’s views.
When considering whether to seek a welfare report or the child’s views, the court will have regard to the age and maturity of the child, the nature of the issues at dispute in the proceedings, any previous report, the best interests of the child and whether this will assist the child in conveying his or her views.
The expert appointed to ascertain a child’s views has the role of ascertaining the maturity of the child and assessing whether the child is sufficiently mature to be capable of forming views on the issues at dispute in the proceeding.
Where the expert considers the child to be capable of forming views, the expert will have the role of ascertaining those views and of preparing a report on them. The Department/Minister may make regulations on any applicable fees, qualifications, experience and standards.
Alternative dispute resolution procedures may apply in disputes in relation to custody. There is an obligation on the solicitor acting for an applicant to discuss the possibility of engaging in counselling and mediation on entering an agreement in relation to custody and access.
Proceedings may not be instituted unless compliance with the requirement has been certified. The certificate must confirm that names and addresses have been given of qualified counsellors and mediators.
Similar requirements apply in other proceedings, divorce and judicial separation in particular. Courts have the powers to adjourn proceedings in respect of guardianship and custody for the purpose of enabling an agreement to be made with or without the assistance of a third party.
The District Court has the power to order social workers’ reports. The wishes of the child must be taken into account.
A court may appoint a guardian ad litem where satisfied that it is in the child’s best interest. The court must take into account the age and understanding of the child, his or her welfare, social workers’ reports, and the wishes of the child.
The guardian ad litem may be legally represented if the issues are sufficiently serious.
Children may give evidence by live video link in proceedings relating to their welfare. They may give evidence through an intermediary with regard to their age and mental condition.
Hearsay evidence may be allowed where the child is not able to give evidence by reason of his or her age or where giving evidence would not be in the child’s best interests.
The court may hear the evidence of a child under 14 other than under oath. The court must be satisfied that the child is in a position to give intelligible evidence relevant to the matters concerned.
2015 Reforms: Applicant
A Court may grant custody to a child’s parents. They may be a same-sex couple.
A relative or a person with whom the child resides may apply for access to the child without having first sought permission from the Court to do so. The Court may seek the views of the child on the application for access.
The provisions apply to same-sex parents as well as opposite-sex parents. The following persons may apply for custody of a child:
- a relative of a child;
- a spouse or civil partner of the parent who has shared responsibility with the parent for the child’s day-to-day care for more than two years;
- a person who has cohabited with the child’s parent for over three years and has shared responsibility with the parent for the child’s day-to-day care for more than two years; or
- an adult who has provided day-to-day care for the child for more than 12 months where there is no parent or guardian willing or able to assume guardianship rights and responsibilities.
The Court may not make an order for custody without the consent of each guardian of the child, except where the Court is satisfied that it is in the best interests of the child to dispense with such consent.
2015 Act: Orders
Custody may be granted jointly to a parent and to one of the persons specified in categories 2, 3 or 4 above. In this case, the Court may specify the child’s residential arrangements where they have not been agreed with the parents and the person being granted custody. It may also specify the contact that the child will have with a parent where the child’s residential arrangements involve the child living apart from that parent for any period.
The Court may impose any conditions it considers necessary in the best interests of the child when making orders under the Guardianship of Infants Act. It may impose conditions on the holding of the child’s passport in order to protect a child’s best interests and the child’s right to the care and custody of both parents. The Court may retain the passport or order that it may be held by a specified person and released according to specified conditions decided by the Court.
If a Court decides that a care order or a supervision order may be needed in respect of the child, it may adjourn proceedings and make directions under the Child Care Act 1991 in relation to issuing of a care order or supervision order in respect of the child.
A separation agreement is not invalidated by reason only of providing that one parent is to give up custody of the child to the other. This provision now applies to separation agreements made by same-sex couples as well as to opposite-sex couples.
The court may make enforcement orders against a guardian or parent who has unreasonably denied the other parent or guardian access or custody. The court may, where it is in the best interests of the child to do so, make an enforcement order providing:
- the parent or guardian denied custody or access be granted additional time with the child so as to rebuild their relationship;
- the parent who has denied the other custody or access be required to reimburse that parent or guardian for any expenses incurred;
- the parent who has denied custody or access may be required to attend a post-separation parenting programme, to avail of family counselling or to be informed of mediation programmes. The other parent may also be required to attend these programmes.
The Court must take account of the views of the child where possible, having regard to the child’s age and understanding. It may refuse to make an enforcement order where it considers the denial of custody or access to have been reasonable.
A person is presumed to have seen an order of the Court if the person was present at the Court hearing in which it was made.
The power of the Court to vary or terminate an enforcement order relating to custody or access has been confirmed.
A parent or guardian who has custody of a child may apply to the Court for reimbursement of expenses where the other parent or guardian fails to exercise court-ordered rights of custody and access. The expenses may include travel expenses and lost remuneration.
An admission by a child under 18 or one of the parties to the mediation that the child has been abused or is at risk of abuse is admissible in subsequent Court proceedings.