Guardianship, Custody & Access

Guardianship/Custody in a Marital Relationship

Guardianship & Custody relate to the right of the physical day-to-day care and control of a child. Married persons residing together are the joint guardians and custodians of their children. Provision for the care of children is obviously necessary when parents no longer reside together.

Custody

When marital parents, though both equally guardians and custodians of their children, are living separately the children, in the interests of maintaining as much stability as possible, as much as is possible, need to live in one house and go to one school. If the marital parents cannot agree on who is to get custody, recourse to the courts will be necessary. The most significant and paramount factor the court takes into consideration is the welfare of the child; this encompasses the child's religious, moral, intellectual, physical and social welfare. It should be remembered that a custody order is never a final order.

Access

It is often thought, when one parent leaves the home, that if they surrender custodial rights they will lose all control over his/her child’s rights. This belief often arises from a lack of understanding of guardianship and the rights and duties that are retained by the virtue of guardianship and ‘Access’ provided by the courts. It should be remembered that as with a custody order, an access order is never a final order.

Guardianship/Custody in a Non-Marital Relationship

Applications for Guardianship

In a non-marital relationship the mother has sole guardianship of a child born outside marriage and as sole guardian is entitled to custody. The natural father of the child who is not married can apply to the court to be appointed as guardian of the child. However, the easiest route for the unmarried natural father to become a joint guardian of the child is by obtaining the mother’s agreement.

Applications for Custody / Access

When a non-marital relationship breaks down and the parents cannot come to an agreement in respect of their child’s residence/ access, the court is obliged to give direction. As with guardianship the natural father can apply for custodial status even if he does not have guardianship rights at the time of making the application.

Even in the event of a father's application for guardianship/ custody being declined, the father has the right to apply for access. In general, the courts consider it extremely important for the child to have access to both parents; therefore the court is very reluctant to deny access rights to one parent. It should be remembered that as with a custody order, an access order is never a final order.