How do I become a legal guardian of my grandchild?
Guardianship of a child may seem relatively straightforward. A child’s birth mother is automatically the guardian of that child upon his or her birth, and the law governing the guardianship rights of fathers was updated in 2015 to reflect the growing number of couples who wish to share guardianship rights regardless of whether or not they are married.
However, there are some cases in which the legalities of the situation might not be so clear-cut. In the case of grandparents who wish become their grandchild’s legal guardians, either temporarily or permanently, what are the steps they should take?
All too often, when a child’s parents aren’t capable or willing to look after him or her, grandparents become the first port-of-call. For the State, this can seem like the best solution: it keeps the child within their own family and, oftentimes, negates the need for them to pay foster carers. However, grandparents who want to make the arrangement formal might just find that it’s more complicated than they think it ought to be.
One case in 2016 saw a young child’s grandparents fight to foster their grandchild, who they had been caring for, as the child’s parents were not capable of providing an appropriate level of care at that time. The case made headlines around the country as the Child and Family Agency (Tusla) had been removed the child from the care of its grandparents in favour of placing the child with foster carers. Press reports at the time said that the reason the grandparents were given by Tusla was that they were ‘too old’ to foster the child, stating: “It is recommended that there be no more than a 40-year age gap between foster carers and a foster child for whom they are caring.” Tulsa did go on to say that there can be “some flexibility” in terms of the 40-year age gap recommendations.
Fostering is one option available to grandparents, but it’s worth noting that it can be a difficult process, with no guarantees that you’ll be approved as the child’s foster carer solely because of your family links, as with the case above. It’s also important to note that fostering a child is not the same as adopting them. Even if the grandparents are approved as foster carers, Tusla is still responsible for the child and the foster parents do not have guardianship.
Another option is to apply for legal guardianship of the child. Under new provisions in the Child and Family Relationship Act (2015), grandparents can apply for guardianship if they have provided the day-to-day care of the child for a continuous period of a year or more, and where there is no parent or guardian willing or able to exercise guardianship rights and responsibilities in respect of the child. This application can be made through the District Court, where the judge will take a number of factors into account and will hear evidence from the applicants and from Tusla before making a decision. Fostering grandparents can also apply for guardianship, provided they meet the criteria.
A parent can also nominate a temporary guardian, who can be appointed by the court if they are suffering from a serious illness or injury which prevents them from exercising their guardianship responsibilities in respect of their child.
If this is an issue that affects you and you would like legal advice, contact us today.*
*In contentious cases, a Solicitor may not charge fees or expenses as a percentage of any award or settlement.