Marriage Breakdown – Guardianship, Custody, Visitation and Primary Caregiver by Lynch Solicitors Ltd

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WHAT IS GUARDIANSHIP?

Guardianship refers to the rights and duties of parents in the education of their children. Guardianship rights allow a parent to make important decisions regarding that child’s upbringing, such as religion, upbringing, medical treatment, and general education.

The birth mother of a child is automatically the child’s guardian. A father married to the mother of his child is also automatically a guardian. This applies even if the couple got married after the child was born.

There is automatic recognition of guardianship for single fathers, provided they have cohabited with the child’s mother for 12 months, including three months after the birth.

WHAT IS THE GUARD?

Custody means the right to physical care and control of a child’s day-to-day upbringing.

Married parents living together are joint guardians and guardians of their children.

After separation, they continue to be joint guardians and guardians.

However, one parent may have custody and control of the children for longer than the other and act as the so-called primary caregiver. This implies that the child lives with the primary caretaker and stays less frequently with the other parent.

The role of primary caregiver is often confused with custody, which can lead to unnecessary disputes over custody.

HOW WILL THE COURT DECIDE?

The court will deal with the issue of custody/access and primary caregiver based on the facts. For example, the history of the party’s involvement in the care of children, the needs of the children and the resources of the parents to care for the children – but its main concern is the welfare of the child , and she will examine it under the headings of religious, intellectual, and moral well-being.

ACCESS – IF MY SPOUSE HAS DAILY CARE OF THE CHILDREN, CAN I STILL SEE THEM?

The parent who is not the primary caregiver and who does not take care of the child on a day-to-day basis has the right to have access to their children.

Access is defined as the right of the parent, with whom the child does not live, to spend time with the child.

It may include the right to have the child spend the night occasionally, every other weekend or during school holidays and the right for parent and child to go on holiday together.

In many cases, custody, visitation and custody arrangements for a child are informally agreed upon between the parents.

When an agreement cannot be reached, either parent can ask the court to decide the terms governing the arrangement for the children.

DO COURTS OFTEN REFUSE ACCESS?

It is unusual for courts to deny access to a relative and are very supportive of granting access. The courts consider it essential that the child knows both parents and that the parent seeking access can be involved in their lives.

WHAT IF THE COURT ISSUES AN ACCESS ORDER AND MY SPOUSE DOESN’T WATCH?

Once the court has made an access order, any failure or refusal by the custodial parent to comply with such an order (i.e. allow access) is deemed to constitute contempt of court.

This may result in a jail term and/or monetary penalty or be the basis for a request to change the order and remove the parent as the primary caregiver.

WHAT KIND OF ACCESS DOES THE COURT ORDER?

There is no magic formula; Every situation and every family is different.

The court will consider all of the circumstances, such as the age of the child and the relationship the child has with the parent seeking access.

If the parent requesting access does not have a relationship with the child, it is common to build access incrementally. This allows the parent requesting access and the child to get used to each other and gradually develop their relationship.

If, however, the parties were in a relationship or married and living together, the child would generally have a relationship with the parent seeking access, and there would be no need for them to establish the relationship. Courts generally require access to be structured, i.e. on certain days/weekends/evenings, rather than ad hoc.

The court can also order supervised access if it is in the best interests of the child.

WHAT FACTORS DOES THE COURT TAKE INTO ACCOUNT WHEN MAKING DECISIONS ABOUT THE CHILD?

The best interest of the child is the key!

Courts have long taken into account the best interests of the child when dealing with applications relating to matters affecting them.

Factors that are generally relevant in considering “best interests” may include:

  • The advantage for the child of having a meaningful relationship with both parents.
  • The opinions of the child depend on his age and maturity.
  • The physical, psychological and emotional needs of the child.
  • The child’s upbringing and care history, including the nature of the relationship between the child and each parent.
  • The education and the religious, spiritual and cultural needs of the child.
  • The upbringing and the social, intellectual and educational needs of the child.
  • The age of the child and any special characteristics.
  • Any harm the child has suffered or is likely to suffer.

CAN COURTS TAKE INTO ACCOUNT A CHILD’S VIEWPOINT?

Legislation, regulatory texts and case law in force make it possible to take children’s opinions into account. The child’s opinion can be heard directly or through a representative.

A guardian ad litem is usually appointed to this role in child custody proceedings. The guardian ad litem provides children involved in family law proceedings with an independent voice in court. A tutor ad litem is an experienced and qualified person with expertise in working with children.

The guardian ad litem is appointed by the court and advises on what is in the best interests of the child concerned. The guardian informs the judge of the wishes of the child. They also consult with the child, their family and other organizations that know the child and family. These consultations are crucial to ensure that the best interests of the child are independently presented to the Court.

In many cases, the child may be old enough that the judge decides to meet the child for a discussion. This will happen in an informal setting, such as the judge’s private room, and with only the judge and child present.

AFTER-SALES

Get help getting in the right frame of mind to deal with the breakup.

Take care of the children first and foremost and try to keep the family intact.

Keep in mind that the other person may not be as far along in the process – so be patient.

Be fully informed before committing to a decision that has long term effects.

Plan how you will manage the process.

Get to the end of the process as soon as possible without jeopardizing your proper provision rights.

There is a significant benefit to coming to a conclusion – it allows you to move on and rebuild your life.

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