On this page
- What is guardianship?
- Automatic guardianship
- Guardianship by agreement
- Testamentary guardianship
- Guardianship decided by the court
What is guardianship?
Guardianship is the legal responsibility to perform duties for a child’s upbringing and welfare. It includes the right to make decisions about major areas of the child’s life.
For example, guardians have duties to properly care for a child and may have rights to decide on:
- consent to medical treatment
- what school the child attends
- passport applications and taking the child out of the country
- the child’s religious upbringing
Guardianship ends when a child turns 18 years of age, unless a guardian dies or is removed as a guardian before that.
Guardianship should not be confused with day-to-day care (custody), which is about a child’s everyday care, or with access (contact), which is the legal right of a child and an adult to have contact when they do not live together.
Guardianship of a child can be automatic, by agreement between both parties, or decided by a judge in court. The sections below explain each route.
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 adopted.
- Both married parents, including adoptive parents. 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 who has lived with the child’s mother for twelve consecutive months, including at least three months with the mother and child after the child’s birth. The mother must agree on the time spent cohabiting.
Guardianship by agreement
A mother can agree that the other unmarried parent can become a guardian.
Both must sign a statutory declaration form. If there is more than one child, a separate 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. Some solicitors also act in these roles.
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 appointed through 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. The examples below show who may need to apply. This is not an exhaustive list.
Most applications are made to the District Court. Applications can also be made to the Circuit Court as part of a judicial separation or divorce case. You may wish to get legal advice for your situation.
Parent but not a guardian
The child’s mother does not agree to you being a guardian. In this situation, you must apply to the court to be appointed a joint guardian. This also applies where the mother does not consent to sign the statutory declaration form. The judge will decide what is in the best interests of the child and the parents.
The child’s mother disputes the length of time cohabiting or childcare. As the other parent, you have automatic joint guardianship if you have lived with the child’s mother for twelve consecutive months, including at least three months with the mother and child after the child’s birth. If there is disagreement about the time spent cohabiting or caring for the child, you can ask a judge to decide. 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 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 where the child has no parent or guardian willing or able to exercise guardianship responsibilities.
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 if 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, 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 the nominated person believes that this situation has arisen, either can apply to the court for an order granting temporary guardianship.
