Children: Custody, Access and Maintenance
The welfare of children is of the utmost importance to consider when a marriage or relationship is in difficult times or when it ends. Custody refers to the day-to-day care and control of dependant children, and the determination of custody will have to be considered in a separation or divorce. In most cases, one parent (usually the mother) is granted custody of the children, but it is possible for both parents to have custody. This arrangement is called joint custody. The natural mother is the automatic guardian of a child. Whether the father is the natural guardian depends on his relationship with the mother. IN short, if the father is not married to the mother he is not considered the automatic guardian and must apply to the courts for guardianship status. However, there is a very recent case, which appears to expand an unmarried father's right to share custody of his children.
When custody agreements cannot be reached between couples, parents can apply to the courts for custody. The court then decides what is in the best interest of the children. Children have the right to visit and interact with their non-custodial parent. Both parents can agree upon arrangements for access to the children, or the court can impose arrangements, depending on the situation and what is in the children's best interests. Obviously, it is preferable if the parties can agree upon custody and visitation rather than a court imposing a visitation plan. Sometimes, parents agree to split the children with one party having one child and the other having the other child. This type of arrangement is frowned upon by the court and it is generally considered to be in the children's best interest for siblings to remain together.
Where one party is awarded custody, the other party is entitled to apply to the court for “access”. The court will usually grant access absent a compelling reason not to do so. However, the right of access is the child's right, not the parents' and the best interests of the child are paramount and will take precedence over the interests of the parents. Sometimes, depending on the nature of the non-custodial parent's actions, the court may grant monitored visitation or access so as not to deny outright one party's access when the said party has committed some egregious act. In any event, even though an access order has been made, such an order is always open to modification at a later date when one party applies to the court to vary the order.
It should also be noted that other relatives, including Grandparent, may also apply to the court for access to their grandchildren. This is a complex matter which is beyond the purview of this site, and any relative seeking access, when he or she has not been designated as the child's guardian, should seek legal assistance.
A child has an absolute right to be supported. When the parties are together, there is usually no problem. However, when they separate, one of the parents will likely be ordered to pay maintenance to the other parent. The amount of maintenance is dependent upon income and the needs of either parent, and the children. Children are considered dependant is they are under 18 years of age, or 23 years of age if in full time education.
Ample Asset divorce cases may be filed in the High Court. Lesser asset cases may be filed in the Circuit court. Finally, in cases where there are minimal assets the parties may file the action in the District Court. However, the District Court can only award up to €500 per week to a spouse and €150 per child per week. Maintenance payments are usually paid on a regular basis, usually monthly, but the maintenance may also be paid in a lump sum. The maximum lump sum maintenance payment at District Court level is €6,348.
If the obligor is continuously late in making maintenance payments, the custodial parent may seek an Attachment of Earnings Order from the court. The Obligor's employer can then be ordered to deduct maintenance from his/her salary. If, after the court has made an order for maintenance, the obligor fails to make the court-ordered payments, then the court has the discretion to commit the offending parent to prison.
For legal advice in relation to Child Custody, Access & Maintenance please contact us:
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