4. Care and Residence of Children

Q. Who has responsibility for the care of the children?

A. The welfare of the child (or the “best interests” of the child) is the paramount consideration of the Court in all matters relating to parenting.

A Guardian of a child has the parental responsibility for the long-term welfare of the child. This includes decisions concerning the child’s education, changes to place of residence, religion, upbringing and health needs other than of a routine or urgent nature. The Court will not usually disrupt the Joint Guardianship (and parental responsibilities) of the parents of a child by making a Sole Guardianship Order, unless exceptional circumstances exist.

A parent with the Residence of the child(ren) has the daily care and control of the child(ren) with the right and responsibility to make decisions concerning their daily care.

Q. Will my child be able to decide where he or she wants to live?

A. There is no “magical age” when a child can determine for themselves where they wish to live. The wishes of the child (whatever his or her age) are considered in both Residence and Contact proceedings, as far as the Court considers it appropriate in the circumstances. The wishes of the parents are therefore of little concern to the Court, except in so far as they may affect the welfare of the child.

Q. How does the court decide where the children will live?

A. The Court will carefully examine all the relevant considerations before deciding questions of Guardianship, Residence and Contact. The services of the Family Court Counsellors or other Welfare Officers are used in almost every case to assist the Court in reaching a decision. A separate lawyer called a child representative can be appointed for the child(ren) by the Court in certain circumstances. Family Court counselling is required if parenting matters are in dispute by the parties.

“Matrimonial conduct” is relevant to an extent, but only in so far as it affects a parent’s qualities as a person with the care and control of the child(ren). Allegations against a parent must be well founded and preferably backed up by an independent witness. If unproven they can be very damaging to your case.

A court can grant Residence to a person other than a parent where the parents are not suitable or unable, for whatever reason, to look after the child(ren) adequately. A third person can bring an Application for Residence in the Family Court, as can a child in certain circumstances.

Should a Resident Parent die, the other party does not automatically get Residence. He or she must apply to the Court for Residence of the child(ren) in the absence of agreement. He or she cannot simply take the children. Other interested parties can also apply for Residence (e.g. Guardians appointed in a Will by the deceased, step-parents, grandparents etc.).

Q. When can the court’s orders be varied?

A. Guardianship and Residence Orders can be varied where there is a substantial change in the parent’s situation or the welfare of the child(ren) is being significantly affected.