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FAMILY LAW - Homepage

General

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Custody

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Custody

Relevant court forms

What is custody?

Custody is the right of a parent to exercise physical care and control in respect of the upbringing of his or her child on a day-to-day basis. The married parents of a child are automatically joint guardians and custodians of their child.

What happens when married parents separate?

Where married parents have separated or divorced, they can decide between themselves on custody arrangements for their children. If they cannot agree, they may try to work out an arrangement through mediation but if that fails they must apply to the court for a final decision.

What is the position where the parents are not married?

Where children are born outside of marriage the mother has an automatic right to custody. A father who is not married to the mother of his child can apply to the court for custody in the absence of agreement. It is not necessary for a father to have guardianship rights before he applies for custody.

If an unmarried mother does not want custody of the child and intends to place or has already placed the child for adoption, the unmarried father may still apply for custody.

Can other people apply for custody?

Yes. The following may apply for custody;

  • a person who is a relative of a child or
  • a person with whom the child resides if that person is or was married to, or in a civil partnership with, or has cohabited with the parent of the child for a period of at least three years and has shared the day-to-day care of the child for at least two years or
  • a person with whom the child resides and who has had the day-to-day care of the child for a continuous period of not less than 12 months and the child has no parent or guardian who is willing or able to exercise the rights and responsibilities of guardianship in respect of the child.

 

A person who is a guardian and who does not have custody (jointly or otherwise) or from whom custody of the child has been taken can apply for custody order under section 11 of the Guardianship of Infants Act 1964 (as amended).

How to make an application for custody

Most applications for custody are made in the District Court. You can engage a solicitor to make an application on your behalf or you can make the application yourself. You may be entitled to legal aid.

If you choose not to engage a solicitor you will need to contact the District Court office in the area where you or the respondent live. You must complete and lodge the relevant court forms in the court office. Court staff will identify the forms you need to make your application but cannot tell you what to put in the forms. 

Notice of the application must be served on the respondent at least fourteen days or, in the case of proceedings certified as urgent, at least two days, before the date of the court hearing. After service, the notice, together with a statutory declaration as to service, must be lodged with the District Court clerk at least two days before the court hearing. You must also attend in court on the day to make your application.

Where the District Court makes an order under the Act, the court clerk will give, or send by ordinary post, a copy of the order to each person in whose favour or against whom the order was made.

Sometimes applications for custody and access form part of other proceedings for example, judicial separation or divorce in the Circuit Court or the High Court. In such cases the appropriate court to deal with an application for custody and/or access is the court dealing withthe other proceedings. This includes applications to vary or discharge previous custody and/or access orders.

Court forms

 

District Court: S.I. No.125 of 1999: District Court (Custody and Guardianship of Children) Rules 1999; S.I. No. 17 of 2016 District Court (Children and Family Relationships Act 2015) Rules 2016.

  • Form 58.17: Notice of application to apply for custody, access, maintenance - section 11(1) and 11(4)
  • Form 58.41: Notice of application under section 11E

 

Circuit Court: S.I. No. 358 of 2008:Circuit Court Rules (Case Progression)

  • Form 37L: Summons to attend case progression hearing
  • Form 37N: Case progression questionnaire

 

High Court: S.I. No. 15 of 1986: Rules of the Superior Courts - Order 70 

 

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page updated: 18 August 2016