Once the decision has been made to apply for a divorce most people consult a solicitor whilst others opt for a DIY approach. Regardless of which approach is taken spouses seeking a divorce must do so through the Court System.
Given the gravity of the matter at stake and often the fact that there is the welfare of children involved and family assets to be divided the vast majority of people elect to engage the services of an experienced family law solicitor either privately or through the state funded legal aid board.
Custody means the right to the physical care and control in respect of the upbringing of a child on a day to day basis. Married parents residing together are the joint guardians and custodians of their children. After separation they continue to be joint custodians. However, one parent may take the role of primary carer which involves the child/children living with them and staying with the other parent less frequently.
The parent who does not have the day to day care of the child is entitled to access to the child / children. Access is defined as the right of the parent, with whom the child does not live, to spend time with the child. It can include the right to have the child stay overnight either occasionally, on alternate weekends or during school holidays and the right for parent and child to go on holidays together. In many cases, custody and access arrangements for a child / children are agreed informally between parents. Where agreement cannot be reached in this regard either parent can make an application to the court to decide the terms and conditions which will govern custody and access of a child / children. The application can be made to the District Court or can be made in an application for Judicial Separation or Divorce in the Circuit Court.
Guardianship means the rights and duties of parents in respect of the upbringing of their children. Guardianship rights entitle a parent to make important decisions regarding that child's upbringing, for example, deciding on the child's religion, education, medical treatment and general rearing.
The natural mother of a child is automatically a guardian of the child. A father who is married to the mother of his child also has automatic guardianship rights in relation to that child. This applies even if the couple married after the birth of the child.
However, a father who is not married to the mother of his child does not have automatic guardianship rights in relation to that child. If the mother agrees for him to be legally appointed guardian, they must sign a joint statutory declaration. If the mother does not agree for him to have guardianship, he may apply for this status to the District Court.