CUSTODY
The person who has custody of the children makes the day-to-day decisions in relation to the children’s lives.
It is now common place for the circuit family court to give joint custody to parents. This does not mean that the children will literally spend the same amount of time with Mum and Dad, as given children’s schooling and other matters, this may not be desirable.
It does, however, seek to preserve a measure of equality between the parents going into the future, and with some exceptions, this is generally a good thing. Applications for custody are generally part of family law separation or divorce proceedings.
However, the Custody of children can sometimes be the sole basis of an application to court and such application might be made to District, Circuit or High Court. An issue of custody might arise for any number of reasons and generally such disputes are acrimonious and will usually travel the distance to court.
Access
Access can be the sole basis of an application to court and such application can be made to the District, Circuit or High Courts. Issues about custody and access are precisely the types of issue that would be better resolved outside the court system either collaboratively or by mediation. Court hearings generally do not foster trust between parents and do not improve communication.
With some notable exceptions, a family specialist will have no problem picking up on the exceptions; the vast majority of such cases revolve around a lack of trust between the parents. If the trust can be restored by improved communication, establishing rapport, consistency and responsibility on both sides and by having clear agreements then the vast majority of these cases could resolve amicably.
Guardianship
An unmarried mother is automatically a guardian of her children whereas an unmarried father must apply to court for appointment if it cannot be agreed between the parents.
Generally, this is an issue that could well be resolved between the parents collaboratively or meditatively. Most applications, however, are made to the District Court.
Child Abduction
If a child is taken from his/her habitual place of residence into another State/Country without the permission of the custodial parent, a Hague Convention application may be made. Both countries involved must be signatories to the Hague Convention.
Such applications should be made quickly; therefore it is very important that you consult a specialist at the very earliest opportunity. Delay can defeat an application, because the longer a child is in a new place, the more reluctant a court will be to return the child to his/her habitual place of residence.
In general the children should be returned to their habitual place of residence, unless there are grave risks to the child in being so returned.
Maintenance Orders
If parties cannot agree upon maintenance either party can apply to the Courts for a Maintenance Order. This Application can be made through either the District Court or the Circuit Court or the High Court.
Maintenance can be ordered to be paid to a Spouse for their own benefit or for the benefit of a child who is under the age of eighteen or twenty three if the child is in full time education.
If a child has a mental or physical disability to such a degree that it would not be possible for that child to maintain him or herself, then there is no age limit for seeking maintenance for their support.
Each party is under an obligation to disclose in full their finances to the Court. The Judge has to consider all of the family’s circumstances, assets, income etc. when making a Maintenance Order.
Maintenance in a Non Marital Relationship
In a non marital relationship a party is not entitled to claim maintenance for themselves from the other party. However an Application can be made to Court to order a parent to provide maintenance for a dependant child.
Protection, Safety and Barring Orders
Where there has been violence in a relationship or threats of violence or where there has been some form of abuse or systematic bad behaviour then a court may grant one of the above orders. Such orders can be granted on an interim basis on application by way of Notice of Motion by the Circuit or High Court pending a hearing for Judicial Separation or Divorce. Such orders can also be sought in and of themselves by the parties applying to court. A person in immediate danger can apply for an emergency temporary barring order.
A person in fear can apply for an interim Barring Order or a Protection Order to be granted pending the formal hearing. The breach of either of these orders can have very serious consequences and it would be extremely important to be properly advised at all times on these matters.
The ability to apply for the above orders is not confined to married people or to heterosexual couples and anyone with such an issue who is not married should take legal advice in order to assess whether or not they could make such an application.
Domestic Violence
Protection Available
Under The Domestic Violence Act 1996 the following Orders may be obtained:
Safety Order Barring Order Protection Order – If any of these Orders are breached by either party the Gardai have immediate powers of arrest.
Safety Order
This Order prevents a party from committing further violence or threatening violence against another party. The party against whom the Safety Order is granted is not required to leave the family home.
Who can apply for one?
The Spouse of the Respondent irrespective of how long they have lived together. An unmarried partner who has lived as husband/wife with the Respondent for at least 6 months out of the previous 12 months before the Application for the Safety Order was made. A parent can apply for an Order against a child who is not a dependant. A person of full age (over 18) who lives with the Respondent in a relationship, the basis of which is primarily non contractual for example not a lodger or a tenant. Relatives who live together. The Health Service Executive. If the relationship is not based on marriage the Court considers the following factors:
The length of time the people have lived together. Type of duties carried out by either person for the other. If any payment was made by one person to the other for living expenses. Grounds for a Safety Order
Safety Orders will be granted where the Courts consider there are reasonable grounds for believing that a person’s safety or welfare is at risk. The Court can order a party: a) Not to use or threaten to use violence or put in fear the Applicant or any dependent b) To stay away from the residence of the Applicant if the parties do not live at the same address The Order does not require the Respondent to leave the home if the parties reside at the same address.
Duration of a Safety Order
An Order made by a District Court can last up to five years – before this Order expires an Application can be made to have it extended for a further five years or for a shorter period.
The Circuit Court can grant a Safety Order of unlimited duration.
Non compliance with a Safety Order
Under Domestic Violence Act it is an offence to breach a Safety, Protection, Barring or Interim Barring Order. The penalty is a fine and/or a prison term of 12 months. Gardai can arrest a Respondent without a Warrant or enter and search any place they suspect that person to be.
Barring Order
This Order requires the violent person to leave the family home when the Order expires or is set aside. The District Court may grant a Barring Order for up to three years and an Application for an extension can be made. There is no time limit on such an Order if it is made by the Circuit Court.
Who may apply for a Barring Order?
A Spouse on his/her own behalf or on behalf of the dependent child. A Partner who has lived with the alleged offender as husband and wife for at least 6 out of the previous 9 months. A parent of an adult child can apply for an Order against him/her unless that child owns the family home. The Health Service Executive. Protection Order
While you are awaiting for the Court to decide on an Application for a Safety or Barring Order the Court can give you an immediate Order called a Protection Order. This has the same effect as the Safety Order but as it is only intended to last until the Court decides on your case, it is temporary in nature.
Interim Barring Order
In exceptional cases this Order will be granted, there must be evidence of immediate risk of significant harm to the persons applying and a Protection Order must also be considered insufficient in the circumstances. This Order can be granted without the knowledge of the other’s party. That person however has to be served immediately with a copy of the Statement upon which the Order was made. A full Court Hearing has to take place within eight working days of the Interim Barring Order being made. Applicants can represent themselves through the process. Legal Aid can be available. You may be eligible for Legal Aid if you are a person of moderate means. To qualify for Legal Aid, you have to be assessed. The Legal Aid Board has offices located around the country. For the location of your nearest Legal Aid Board Office call 1890 615200.