MAINTENANCE, ACCESS & GUARDIANSHIP- FAMILY LAW

Thursday, September 18th, 2014

The sad reality is that relationships sometimes break down. Where parties cannot reach an agreement, solicitors can assist by providing advice and representation for those involved in a family law matter.

Below is a quick overview of some of the more commonly found issues in family law proceedings:

Maintenance

The Family Law (Maintenance of Spouses and Children) Act, 1976 allows for the payments of maintenance by a spouse for the support of the other spouse, and by a parent (whether married or by not) for the support of any dependent children where there has been a failure to provide reasonable maintenance. Since 1st January 2011, similar rules apply to civil partnerships and the children thereof.

When confronted with the issue of maintenance, it is recommended that both parties try to reach an agreement between them in respect of the amount of maintenance which is to be paid. This can be done by negotiation directly with each other, through their solicitors or through mediation/collaboration/arbitration.

Where it is not possible to reach a settlement on maintenance between the parties, an application can be made to the Courts and the Judge can be asked to rule on the matter.

The vast majority of claims for maintenance are brought before the District Court where the maximum maintenance that can be ordered is €500 per week for a dependent spouse and €150 per week for each dependent child. If Maintenance is sought above those figures, then an application can be made to the Circuit Court.

The amount of maintenance which is to be paid depends on a number of circumstances such as the income and earning capacity of the spouses, any dependent children of the spouses and any other dependent children of which either spouse is a parent. The court can also have regard to any property, financial resources, income and the needs for any dependent children.

Where a maintenance order is made in respect of dependent children, maintenance is usually paid until the child or children reach the age of 18, or, where the child is in full time education, until the age of 23.

Custody & Guardianship

Custody involves the day-to-day and physical care and control over a child. As a general rule, a natural mother of a non-marital child, being the sole guardian, is generally entitled to the sole custody of her children.

The effect of an order for custody usually means that the parent who has custody can expect for the child to live with them. It is possible in some cases to have joint custody of the children which will usually mean that a child resides with each parent for a specified period of time.

Whereas custody confers responsibility for the day-to-day activities for a child guardianship relates to rights and duties relating to the welfare and upbringing of the child. This can include decisions in respect of schooling, medical treatment, any particular religious belief the child is to be reared with and any decisions in respect of leaving the country.

Unmarried mothers are the automatic Guardian of their children. All children born to parents who are married to each other, or subsequently get married to each other after the birth of the child, are automatic guardians of their children.

An unmarried father can apply to the District Court under the Guardianship of Infants Act 1964 to be appointed a Guardian. Alternatively, the mother can consent to the father becoming a Guardian by completing a statutory declaration.

If the court is asked to rule upon guardianship been granted, then the Court will take into consideration all the circumstances of the case and, in particular, what is in the best interests of the child.

Access

Where a parent does not have full custody of a child, he or she may apply for access to the child/children. Access will then allow for visitation periods which may be weekly, monthly or just on holidays depending on how close the parties live to each other.

Access is normally granted, irrespective of the difficult circumstances which existed between the parents during the course of their relationship. In more serious cases, access can be granted on a supervised basis.

Like maintenance, it is preferable if the parties can reach an informal arrangement of access without having to go through the courts.

Once access is agreed, or ruled upon by the courts, an access schedule is put into place whereby the person seeking access has a set time and day for when access is to take place.

As the circumstances surrounding a breakup can be trying for both parties, it is important for each parent to consider access should be a positive experience and should not be used as an opportunity for either parent to look for information from the child, to comment negatively on the other parent or to lavish and spoil children with expensive presents as a means for overcompensating the lack of daily interaction with the accessing parent. Similarly, the parent availing of access should ensure they are always on time, that the schedule for access is not changed arbitrarily and the interest of the children always comes first.

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If we can assist by providing you with advice and representation in family law matters, please contact us at 074-9725105 or at info@mcintyreobrien.ie.