Custody and Access
There is a risk in divorce and separation that where one parent has custody that he or she may cause the child to the alienated from the other parent. This may be done expressly, implied or even subconsciously. This runs contrary to the modern principle that access is the right of the child.
Courts will require the custodial parent to promote the child’s welfare and this will include access to the noncustodial parent, notwithstanding any breakdown of personal relationships.
If the child and or custodial parent refuses to comply with the order, the court is likely to have regard to the wishes of the child. The court may appoint a guardian ad litem to represent a child. Where a parent has caused the alienation of a child, counselling or psychological assistance may be required to overcome the alienation.
An order for access is enforceable in the same manner as any court order. Accordingly, a parent who frustrates or refuses access may be liable to have the order enforced. A summons may be issued requiring compliance with the court order. The failure of compliance may be enforced against the custodial parent.
Mediation and Agreement
Mediation, which is strongly promoted in the family law context, may provide a better means of working out a plan for custody and access to children.
A so-called parenting plan may be a written agreement covering practical arrangements. It may not necessarily be framed in terms of custody and access as such.
Applications by Non-Parents
Since the Children Act 1997, the persons in loco parentis and relatives of children are entitled to apply for access to a child. This will commonly include grandparents and other relatives. Relatives include persons related by marriage or adoption. It may include foster parents, co-habiting non-partners, parents and non-related parties.
Orders may be subject to such conditions as may be imposed. The court will have regard to the nature of the relationship in the circumstances. It will seek not to disturb the child. The child’s interests are of paramount importance. The preferences of the child’s guardian are relevant.
Applications by such persons must be accompanied by an application for leave on notice to each guardian. The procedure seeks to limit unwarranted applications.
Custody and access orders may be varied from time to time. This applies, irrespective of whether they arise in a judicial separation or divorce proceedings.
The orders are never final and are open to variation as the welfare of the child requires. Where there is evidence of altered circumstances or new evidence before the court will be required. An order previously made may be discharged or varied.
Risk of Abuse
A very pointed and difficult issue is that of sexual abuse allegations in the course of guardianship, judicial separation or divorce. There must be some real risk of abuse before the courts take the matter into account.
A real risk, even if far from probable, is likely to be taken into account. Supervised access may be allowed in the interim.In practice, it may be difficult to secure supervised access facilities unless there is an agreed independent supervisor.
Courts are faced with the difficulty of balancing the risk of abuse against the injustice of unfounded complaints in the context of marital conflict. The rights of the child are likely to take precedence, given the requirement that the best interests of the child are central.
Courts require evidence of abuse. Expert evidence is appropriate. Expert witnesses may assist in conjunction with anatomical dolls. Child protection guidelines recommend procedures in relation to child interviews in the context of abuse allegations.
A party against whom allegations have been made, may be entitled to apply for discovery. This may include the discovery of notes and records relating to the assaults, alleged assaults and medical records.
Removal Cross Border
Access and equivalent orders on parental responsibility are automatically enforced throughout European Union. Once the access order has been certified in the Member State from which it emanates, it is deemed to be equivalent to an order of the domestic court.
Difficulties may arise when the custodial parent leaves the country permanently. This can leave the noncustodial parent cut off and prospectively removed from the child’s life. Appropriate access is desirable.
The removal of a child from the jurisdiction without the consent of the other party may be held to be contrary to the child’s best interest, may be held contrary to the child’s best interest.
The Hague Convention seeks to return children who have been abducted/have been taken from the jurisdiction.
Where the parent having access to the child removes him from the jurisdiction, the Hague Convention on International Child Abduction will readily require the return of the child to his country of habitual residence, whose courts will determine the matter. The parent may seek a summary return of the child instead of asserting rights of custody. They must be actually exercised.
Access may be assisted through the central authority under the Convention. Central authority is to promote the peaceful enjoyment of access rights and fulfilment of access conditions to which the exercise of the rights may be subject. The central authority may assist or initiate proceedings to protect the rights of access.
Place of Residence
Generally, the parent with sole custody may determine the place of the child’s residence. Where a parent is not exercising rights of custody but has technical rights, the onus is on that parent to show that they were actually exercised.
Parents without physical custody, with the right to determine the place of residence, may have a right of custody which may be enforced under the Hague Convention.
A parent seeking to relocate should apply to the court to have the matter determined in the child’s interest. The best interests of the child are central.
The Guardianship of Infants Act provides that in any proceedings under the Act, the court shall, if it thinks appropriate and practicable, having regard to the child’s age and understanding, take account of the child’s wishes in the matter. The children may be interviewed by the judge.
The child must be of sufficient maturity and age. As the child grows older, the child’s preferences will be given greater weight. In the case of young, impressionable children, the weight afforded will be relatively little. In cases where the children are teenagers with categorical preferences, there may be little practical alternative but to have regard to their preferences.
The Brussels Convention Regulation requires that the child has an opportunity to be heard. This should occur unless it appears inappropriate having regard to his age or degree of maturity. If there is a clear preference, the judge will not usually interfere with it.
The Hague Convention permits the refusal of the return of a child if the child objects to being returned, and the court so considers having regard to the child’s age and maturity.
Children may be separately represented in Irish courts. The view of the child may be heard indirectly through parents or an independent expert.
It is preferable that the child is interviewed by an expert who reports to the court rather than by direct interview by the judge. It is preferable that the child is interviewed by an expert who reports to the court rather than by direct interview by the judge.
The court, in exercising discretion under the Hague Convention to determine whether or not to order the return of a child, may take into account the interests of the child. It does not appear that it is intended to engage in the type of wider welfare enquiry in relation to future needs which would arise if it was a dispute as to custody and residence. The court, in determining whether to return a child under the Convention, is not determining custody or residence in itself.
The courts of the state of habitual residence of the child before wrongful removal retain jurisdiction and the right to decide on custody, notwithstanding an order for nonreturn.
The court must make an order without delay. Unless exceptional circumstances make it impossible, the court should make its order within six weeks of the commencement of the application.
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