Guardianship of a child can be automatic, by an agreement between both parties or by a judge's decision in court. Here's some information on each.
Automatic guardianship
You may already have automatic guardianship rights. This means you do not have to apply to court for guardianship of a child. The following people have automatic rights:
- All birth mothers whether married or not. This only changes if the child is given up for adoption.
- Both married parents including parents of an adopted child. This applies whether the couple marry before or after the child's birth. Separation or divorce does not change this automatic right.
- An unmarried parent if they have lived with the child's mother for twelve consecutive months. This period of time must also include at least three months with the mother and child following the child's birth. The child's mother must agree on the time spent cohabiting.
Guardianship by agreement
A mother can agree that the other unmarried parent can become a guardian.
In this case, both must sign a statutory declaration form. If there is more than one child, a separate statutory declaration form should be completed for every child.
The declaration must be signed in the presence of a Commissioner for Oaths, Peace Commissioner, Notary Public or Registrar of a Civil Registration Service. These are people legally authorised to witness the signing of important legal documents. Some solicitors also act as commissioners or notaries. You can find their contact details using an online search.
You can get help to reach an agreement through mediation and legal advice.
More information on mediation and legal help >
Testamentary guardianship
A "Testamentary Guardian" is a guardian appointed through the making of a will. A guardian who is a parent of the child, or who has custody of the child to the exclusion of the parents, can appoint a testamentary guardian to act after they die. Any surviving guardian will then act jointly with the new guardian.
Guardianship decided by the court
If you do not have automatic rights or cannot reach agreement, you can apply to the court for guardianship. Below are examples of people who need to apply to court. You may find yourself in an exact or similar situation. This is not an exhaustive list.
Most court applications are made to the District Court. They can also be made to the Circuit Court as part of an application for judicial separation or divorce.
You might want to get legal advice to better understand your particular situation.
Parent but not a guardian
The child's mother does not agree to you being guardian
In this situation, you must apply to the court to be appointed joint guardian of the child. This also applies where the mother does not consent to sign the statutory declaration form. The judge will decide what is in the best interest of the child and the parents.
The child's mother disputes the length of time cohabiting or childcaring
As the other parent you have automatic joint guardianship if you have lived with the child's mother for twelve consecutive months. This period of time must also include at least three months with the mother and child following the child's birth. If there is any disagreement about the length of time spent cohabiting or caring for the child, you can ask a judge to decide on your rights.
This is called an application for a declaration that a person is or is not a guardian.
Step-parent, civil partner and cohabitant
A step-parent, civil partner or a person who has cohabited with a parent for a minimum of three years may apply to the court for guardianship. They must show proof that they have co-parented the child for more than two years.
Other adults
A person who has provided for the child’s day-to-day care for a continuous period of more than one year may also apply for guardianship. This applies where the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of a guardian.
Where a child has no guardian, any person or persons, can apply for guardianship.
Temporary guardian
A "qualifying guardian" can nominate a person to become a temporary guardian in the event that they become incapable of performing their guardianship responsibilities due to serious illness or injury.
A qualifying guardian is a parent guardian who has custody of the child, or if not a parent, is a guardian who has custody of the child to the exclusion of any living parent.
The nominated person must be over 18 years of age. If the qualifying guardian or nominated person believes that this situation has arisen, either can apply to the court to make an order granting the nominated person temporary guardianship.
Check if you can apply
If you would like to check if you are eligible to apply for guardianship, you can use our quick 'Eligibility Checker' tool below.
Check if you can apply for Guardianship
By answering a series of simple questions, you will be able to check if you are eligible to apply for guardianship. Outcomes are based on your answers, but situations can be complex and you might want to get legal advice to better understand your options.
No data is being recorded or sent during the process.