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Fathers out of the waiting room – Family Law Act

Fathers out of the waiting room – Family Law Act

A long wait ended

After a long wait, the 2015 Children and Family Relationships Act has come into operation.

The Act is undoubtedly among the most significant changes in family legislation in Irish history and it is hoped that Ireland’s family law will now better reflect the realities of modern family life.

The Minister for Justice and Equality, Frances Fitzgerald TD, signed an order to commence key provisions of the Act on guardianship, custody and access earlier this month meaning they are now in effect.

Automatic Guardianship for Qualifying Fathers

Grabbing headlines across various media outlets was the automatic recognition of guardianship for unmarried fathers, provided they have cohabited with the child’s mother for 12 months including three months following the child’s birth.

It should be noted that this provision is not retrospective, so guardianship will only be acquired automatically where the parents live together, in a cohabiting relationship, for at least 12 months after the 18th of January 2016 (the actual date the commencement order for the act’s provision was signed).

Catching up to society

Family members other than the parents will also now enjoy greater rights. Following this commencement order a parent’s spouse, civil partner or cohabitant of not less than three years will be able to apply for custody where they shared parenting of the child for two years.

A grandparent or other relative will be able to apply to court for custody of a child where they were responsible for the child’s day to day care for more than 12 months and the child has no parent or guardian willing or able to act as guardian.

Relatives of a child such as grandparents or those acting in loco parentis will also be able to apply to have access to children more easily after a relationship breakdown.

A child co-parented by civil partners will have the same protections as are enjoyed by a child of a family based on marriage

Best interests of the child

The commencement order also brings into effect several other key provisions including allowing the court to impose an enforcement order where a parent or guardian has been denied custody or access.

A child’s best interests will be the paramount consideration for the court in proceedings on guardianship, custody or access.

A maintenance responsibility may be imposed on a cohabiting partner for a partner’s child where the partner is a guardian of the child.

So what does “best interests” of the child usually mean? Well, the factors that a court will typically take into consideration when deciding this are varied.

Typically the court will recognise the benefit to a child of having a meaningful relationship with both parents. Depending on the age and maturity of the child, their personal views will also be considered.

The overall, physical, psychological and emotional needs of the child along with their religious, spiritual and educational needs are also considered.

Any harm which the child suffered or is at risk of suffering as a result of an order will also be borne in mind by the court when deciding such matters before it.