The view of family has changed dramatically in recent years. Until 2013, the traditional family, as enshrined in the Irish constitution, was seen as a heterosexual married couple. Changes in society, however, have led to changes in the law. Today, with the successful passing of the referendums on children’s rights and marriage equality, our constitution has enshrined a more expansive view of the family. Same sex couples are no longer prohibited from enjoying the same family rights as heterosexual couples. This modern view of the family is one that rightfully places the legal rights and best interests of the child at the heart of the legal process.
Irish law, nevertheless, continues to play catch up with society and with the rest of the world. Significant provisions of the 2015 Children and Family Relationships Act have yet to come into force. Gaps that maintain a hierarchy of rights and exclude families, such as same sex parents, remain in our legislation.
Given the legal complexities, parents have looked to Colm and Ruadhán for advice in dealing with the challenges they face. As society and the law evolve, we will continue to support them in their efforts to secure their rights. Whatever your personal circumstances, whether you belong to a traditional or non-traditional family, we can offer you expert advice you on key areas, such as:
- guardianship
- parentage
- surrogacy
- custody
- child protection
Despite the advances that have been made in recent years in family law, problems still remain, including for heterosexual couples. It’s vital to make arrangements for guardianship, for example, where the parents of a child are not married to each other and the father is not the legal guardian, to ensure protection for the the child should their mother die.
Assisted parenthood, including surrogacy
If you are considering surrogacy, you should contact Prospect Law. Lawyers at Prospect Law acting in one of Ireland’s first surrogacy cases, which became a precedent for those that followed.
Surrogacy is an arrangement, supported by a legal agreement, whereby a woman agrees to become pregnant, carry the pregnancy to term, and give birth to the child (or children), for another person (or persons), who are or will become the parent(s) of the child (or children). For non-traditional couples domiciled in Ireland, surrogacy is more complex, legally, than for traditional unions, because of the continuing legislative vacuum. However, many of the same issues arise for everyone.
We are happy to assist any couple, same sex or hetero, in relation to surrogacy or other assisted parenthood issues. If you are thinking of arranging surrogacy abroad, for example, you will probably find a prior consultation with us particularly useful. As well as answering your questions, we can highlight issues that might not have occurred to you, with minimum fuss and disruption. We can advise you on the legal issues that arise, including parentage, guardianship and travel documentation.
If you hope to engage the services of a surrogate mother in another jurisdiction, for example, issues of immigration, including the travel documentation needed to enable you to bring your new baby back to Ireland need to be factored in. Taking these steps ahead of time will ensure that problems do not arise later on. Prospect Law will liaise with the Department of Foreign Affairs in order to obtain the necessary travel documents on an emergency basis. Dealing with such issues in advance is imperative, in our experience.
As soon as you have brought your baby back to Ireland, we will help you with the court applications that are required to obtain parentage, guardianship, custody and other rights in family law.
Custody
As every parent knows, when a relationship is in difficulty, one of the most important questions to consider is the welfare of their child/children. If you decide to separate or divorce, and you have a dependent child in need of day-to-day care and supervision, custody is key. Ideally, you will each want to reach an agreement that works for both of you. Sometimes parents agree to divide their family, with one parent taking one child and the other another. However, such an arrangement is frowned upon by the courts, as it is generally considered to be in the children’s best interests to keep them together.
If you are unable to agree on custody, it is open to one or both of you to apply to the courts, who will then impose arrangements, taking your circumstances and the best interests of the child into account. In most cases, the courts will grant one parent (usually the mother) sole custody, but it is possible for both parents to agree or be granted joint custody. Under Irish law, however, the natural mother is the automatic guardian of her child. Whether the father is considered the natural guardian depends on his legal relationship with the child’s mother. If the parents are not married, the father is not considered to be the automatic guardian and must apply to the courts for guardianship.
Sole custody raises the issue of access to the child for the non-custodial parent — children have a right of access to both their parents. Again, ideally, you will both agree access arrangements for your child, but if there’s no agreement, the courts will impose arrangements. If you agree or are awarded custody, your former partner or spouse is entitled to apply to the courts for access. Other relatives, including grandparents, may also apply to the courts for access.
The courts will usually grant access to a non-custodial parent in the absence of a compelling reason not to, because the child has a right of access. Their best interests are paramount and will take precedence over the parents’ interests. In difficult cases, where, for example, the non-custodial parent may have broken the law, the courts may grant supervised visitation or access. Access orders are not set in stone, however. Such an order may be modified at a later date if a parent (or other relative) applies to the courts to have it varied.
Child maintenance
Children are considered dependent in law if they are under eighteen, or, if in full time education, 23 years of age. A dependent child has an absolute right to financial support. When parents separate or divorce, one will likely be ordered to pay maintenance to the other. The amount is dependent upon income and the needs of both parents and children.
What are termed ‘ample asset’ divorce cases involving high net worth individuals may be filed in the High Court. Lesser asset cases may be filed in the Circuit Court. In cases where the assets are minimal, parents may file the action in the District Court. However, the District Court can only award up to €500 to a spouse and €150 to a child per week in maintenance. These payments are generally paid on a regular basis, usually monthly, but maintenance may also be paid in a lump sum. The maximum lump sum maintenance payment payable in the District Court is €6, 348, however.
If the person who is legally obliged to pay maintenance does not pay the amount awarded or does not pay in a timely manner, the custodial parent may seek an attachment of earnings order. The courts may then order maintenance to be deducted from his or her salary. If the non-custodial parent fails to honour court-ordered payments, the courts also have the power to commit that person to prison.