Single Parent guardianship query

Could anybody advise me on what happens to a child of a single mum if she dies? The senario is as follows: Mother and child living at home with her parents, father wants and has active role in bringing up child pays maintenance weekly, and see child twice week, (child is still very young), Fathers name going on birth cert but will have mothers sirname only.

Father asked about guardianship in the case of death of mother but mother wants child to stay with her parents if anything ever happened to her in future years as she feels that the childs home is there.

Can she make a will stating her wishes for guardianship of the child and would the will stand up in court if father took it further?

any advice would be grateful.

Irish family law tends to focus more on the Constitutional protection of the family i.e. keeping parents and children together, than the best interests of the child - hence the calls for a referendum on the issue.

I would imagine that in the vast majority of cases a parent would always defeat a grandparent in a custody battle regardless of the wishes of any deceased parent.

"father wants and has active role in bringing up child ". Does that not say it all?

Courts do focus on the welfare of the child - in almost all cases that is their primary concern. If the envisioned scenario were to happen, and if the father genuinely wanted and was able to provide a future for the child, then I doubt that a Court would deny it to him unless there were compelling ( e.g. drugs, alcohol problems) reasons.

mf

The mother can appoint her parents as testamentary guardians. This means that they can have a role in the raising of the child. It does not guarantee that they would get custody though if the child had been with them for several years then that woudl be taken into consideration.

I agree with you but i think at the moment in Ireland the single father has no legal rights, Please correct me if i'm wrong and yet if the mother dies he gets the rights then! What happens i wonder if she marries?

glynner said:

I agree with you but i think at the moment in Ireland the single father has no legal rights, Please correct me if i'm wrong and yet if the mother dies he gets the rights then! What happens i wonder if she marries?

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It is not correct to say that single fathers have "no legal rights", however, unlike a married father who automatically becomes a guardian, the unmarried father has to either reach an agreement with the mother or go to court to be appointed guardian.

When the mother dies he doesn't get anything automatically if he is not already a guardian.

The father needs to apply for joint guardianship firstly. Because they are not married the mother is the SOLE guardian which means she has every say with regard to the child including who's care the child will be placed in in the event of her death.

If the mother dies (God forbid) the child would more than likely be placed in the care of the maternal grandparents as this is the childs home environment and also because the mother stated this in her will this would be taken very seriously be a judge. At this stage if the father was not a joint guardian he would have to look for acces and visitation.

(Had a friend with a very similar situation.)

Thank you Stifster & Margie your comments have been very helpful, but do you know if the father goes to court to get legal guardianship can he do it without the mother being in agreement? and therefore it is in her best interest to make a will also?

glynner said:

Thank you Stifster & Margie your comments have been very helpful, but do you know if the father goes to court to get legal guardianship can he do it without the mother being in agreement? and therefore it is in her best interest to make a will also?

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He can go to court, she can oppose but the Judge could still appoint him as a guardian (as mf said there need to be compelling reasons for the Judge to refuse, which is fair imo).

Therefore she does need to make a will.

The mother's solicitor could object to joint guardianship being appointed to the father but there would have to be extreme circumstances to bring the judge to the conclusion that it wouldn't be in the best interests of the child to appoint the father as joint guardian.

As Margie says, if the father were to seek guardianship he would probably get it. He would then be the sole guardian in the event of the mother passing away.

In most cases, the father having guardianship over his children and having an active role in their upbringing is a good thing. Its difficult for us to guess on the fathers intentions or what is good for the child without knowing the people involved. The father having guardianship doesnt mean that the child cannot live with the grandparents if the mother passed away - the father, as guardian, may decide himself that this is best for the child. Alternatively, if the father has a family, he may decide that it would be better to bring his child up alongside their brothers/sisters in a family environment rather than have them living with elderly grandparents - and this may be the best thing for the child.

One thing people have to be careful of is the motives for such decisions. Often separated parents focus more on getting back at one another by seeking/denying custody or get wrapped up in personal differences between each other rather than the interests of the child.

glynner said:

(child is still very young), Fathers name going on birth cert but will have mothers sirname only.

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Can I ask what is meant by this because either the fathers name is on the birth cert or not. his name can't be 'going' on the birth cert. If the fathers name is not on the birth cert this is a whole different kettle of fish.

csirl said:

One thing people have to be careful of is the motives for such decisions. Often separated parents focus more on getting back at one another by seeking/denying custody or get wrapped up in personal differences between each other rather than the interests of the child.

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I absolutely agree with you. Well said.

The best interests of the child are parramount at all times.

(In my friends case the father was refused guardianship which was the best decision as he was very unstable. Don't want to go into too much detail. He was given access but didn't bother about this and hasn't seen the child in 6 years through his own selfishness so therefore the judge was correct in this case.

But there are many cases where the father does deserve to be appointed joint guardian.)

The child is only being registered now as still under 3 mths old and is having his name on cert but mother is able to give her sirname once father accompanies her at registeration and signs forms, but he is questioning guardianship at this early stage and mum is concerned that she is doing right by child from the start. I agree that one upmanship is a key factor at present lets hope that things change in the course of time and nothing will ever happen mum.

"If the mother dies (God forbid) the child would more than likely be placed in the care of the maternal grandparents as this is the childs home environment and also because the mother stated this in her will this would be taken very seriously be a judge. At this stage if the father was not a joint guardian he would have to look for acces and visitation."

I don't believe this is correct. If he was not already a guardian and sought to be appointed, he would be unless there were compelling reasons not to. And if he could provide a home and a future for the child, it is more than likely that a court would grant him custody.

Just to make one thing very clear. This child has two parents. Too often one parent refers to "their" child as "my" child. Always worth bearing in mind.

mf

It's also worth bearing in mind that guardianship and custody are two totally seperate issues.

And I can assure you that what i said is correct.

My daughter lost her mother, and i was never a guardian and am not listed on the birth certificate. her grandmother now wants full guardianship. I do get to see my daughter every weekend if i want. but surely if i agree to full guardianship then i will lose any say on whats best or not for her ? Is it possible to do a joint guardianship with her grandmother if both parties agree ?

If you apply for guardianship, you should get it (assuming no reasons to deny). As the guardian, you would be within your rights to allow the child stay with her grandmother if this is what you think is best for the child.

thanks a million.

can anyone give me advice, my mother passed away who was living in England, my little brother was born and living in England also, i brought him to Ireland, to live with me were i also filed for guardian ship, im just curious to no is there any benefits i can claim for UK for him as he is British but residing in Ireland.

As hes 13, I gave up full time work to get get into a routine, as ive no children of my own, im 25 and we were both trying to deal with the loss of our mother.

so financially it would be helpful to no if theres anything im entitled to for him.

thank you so much for any adivice that could lead me on the right path to finding this out.