The Status of Children Act, 1987 makes provision for declarations of parentage.
This will involve an application to the Circuit Court that a person is his/her mother or father, even where the parent is dead.
The Status of Children Act, 1987 also provides for blood tests including DNA testing, where parentage is in dispute, to be carried out. The Court can make this order of it’s own volition or a party to the legal proceedings can apply to the Court for such an order. These tests are not funded by the public health system nor the Courts so the cost of the tests will have to be paid by one or both parties or whoever the Court directs to bear the cost.
Presumptions of paternity
The Status of Children Act, 1987 provides a presumption of paternity where a couple is married and presumes that the husband is the father of the child. Like all legal presumptions, this can be rebutted by evidence on the balance of probabilities.
In an unmarried parents situation there is no presumption in law as to the father of the child, unless the man has been named on the birth certificate as the father.
Fathers who acknowledge paternity can have their names added to the birth certificate. If a father is not named on the birth certificate then he may have to prove paternity to the Court if he wishes to apply for access, guardianship or custody.
The Status of Children Act, 1987 amends the Births and Deaths Registration (Ireland) Act, 1880 to allow the insertion of the natural father’s name on the child’s birth certificate
- If both parents agree or
- If there is a Court order naming him as the father.
However where a child is born to a mother who is married, and the husband is not the father, the required statutory declaration will be different as it will require a statement from the husband that he is not the father or a statement from the mother that she had been living apart from the husband for ten months prior to the birth or a Court order naming the father.
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Seeking guardianship by the father of a child in a non-marital situation is a common application before the District Court in Dolphin House, Dublin 2.
The reason is simple: under the existing law the father of a child in a non-marital relationship is not automatically a guardian of the child, although the mother is.
The father of the child is only automatically a guardian where
- He was married to the mother at the time of the child’s birth or
- If the parties marry after the birth of the child.
What does guardianship mean?
Guardianship is concerned with the overall care of the child in a global sense and will involve having a say as to
- Permission of the child to marry
- Passport forms
- The general upbringing of the child
- The child’s medical care
- The child’s education
- Acting on behalf of the child in legal proceedings
- Custody of the child
- Any property of the child until the child reaches the age of 18.
The natural father, thanks to the Status of Children Act 1987 (section 12), can now apply to the District Court under section 6A of the Guardianship of Infants act 1964 to be appointed a guardian of the child by the Court.
The first and paramount consideration of the Court in considering such an application will be the welfare of the child (sect. 3 Guardianship of Infants Act 1964).
Guardianship by consent
However where the mother of the child consents there is a procedure under Section 2(4) of the Guardianship of Infants act 1964 where both parties can swear a statutory declaration agreeing for the father to become a joint guardian.
This will not involve a court appearance and can be carried out by the parties themselves by filling out the appropriate form under the Act and can be done regardless of the living arrangements of the parties-that is, they do not have to be living together. (If the father is not registered on the birth certificate then it is likely that the declaration will be rejected by the Registrar pending his registration as father on the register maintained under the Civil Registration Act 2004.
However despite the relative ease with which you can carry out this declaration procedure you should always seek legal advice before signing one.
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