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GAZ
T
I I
H
JANUARY/FEBRUARY IV77
IS THE CUSTODY ORDER FINAL?
No Court Order tnade in Guardianship proceedings as
to custody of children is ever final but is subject to
review at any time
if
it is established that facts and
circumstances previously taken into account by the Court
have changed since the original Order was made. The
Orders are therefore to be regarded as being of an
interlocutory nature and reviewable at any time on notice
to the other side.
WHAT IS THE POSITION OF THE ADULTEROUS
SPOUSE VIS-A-VIS CUSTODY ORDERS?
u
The Courts . . . should always be reluctant to reach
••• a conclusion" that one parent is unfit bv reason of
character or conduct to have custody "because the
Welfare of the children will rarely be advanced by a verdict
condemnation of one or other of the carents"
(O'Dalaigh C. J. in
B.
v.
B.
(unreported) Supreme Court,
24 April, 1970). At one point the Supreme Court tended to
P'ace much more emphasis (than many would have
toought desirable) on the moral aspect of the marriage
(viz
W.
v.
W.
unreported Supreme Court December, 10,
1971) but the more recent decision is
O.S.
v.
O.S.
(unreported, 5 April, 1974, Supreme Court) would now
tond to dispel this viewpoint. However, one should note
that Section 18 (1) of the G.I.A.-1964 does give much
support to a moralistic viewpoint by providing that the
Parent by reason of whose misconduct a decree of divorce
fmensa et thoro
is made may be declared by the Court to
unfit to have custody and consequently on the death of
toe other parent the "guiity" parent will not be entitled as
right
to the custody of the children. It is certainly true
toat Judges are often left with an agonising choice.
WHAT COURTS HAVE JURISDICTION IN
GUARDIANSHIP CASES?
The High Court has complete jurisdiction in all areas
Jtoder the G.I.A.-1964 whereas the Circuit Court has a
united jurisdiction and only, in relation to Part 2 of the
Act (which concerns actual guardianship but excludes
enforcement of right of custody" which is dealt with in
3 of the Act).
J^INCIPLES GOVERNING THE TERMINATION
U F
A PARENT'S RIGHT TO CUSTODY
On reaching majority — i.e. 21 years.
• On the marriage of the child.
* On joining the Army or the Maritime Service.
Under Sections 14 and 16 of the G.I.A.-1964 - a
Parent who has abandoned a child and later applied
for an order of custody may be refused that order by
virtue of his earlier conduct in abandoning the child.
^USTODY PROVISIONS IN SEPARATION
AGREEMENTS
Such provisions will not be invalid by reason only of its
jjtoviding that one of them shall give up the custody or
f
ntr
°l of the infant to the other. But as the overriding
ct
°r is the welfare of the children and not what the
Parents agree themselves, it is perfectly open to one spouse
apply
t 0
h
a v e a
custody provision in a Separation
8
r
cement set aside. He or she would have to give a
satisfactory explanation to the Court why he/she signed
his rights away.
MAINTENANCE IN RELATION TO THE SPOUSE
WHO IS AWARDED CUSTODY
Although the Court can order either spouse to pay
towards the maintenance of the infant, this power does
not extend to a natural father, and consequently, although
he (the natural father) may apply to the Court for rights
of custody and access, he cannot be compelled under the
G.I.A.—1964 to provide for that child. One should pay
particular regard to the maintenance provisions of the
Family Law (Maintenance of Spouses and Children) Act,
1976. Many parties have tended to use Section 11
applications (i.e. Applications to the Court regarding the
welfare of the children) as a "second-best" method to
getting a divorce
a mensa et thoro,
primarily because of
the cost factor and also because these type of cases are
dealt with much more quickly. However this mode of
practice has been strongly disapproved of by Mr. Justicc
Kenny.
CUSTODY ORDERS BY FOREIGN COURTS
Such orders may be used in Court (custody)
proceedings here - However English decisions cannot be
enforced.
CHILDRENS' AGES - A RELEVANT FACTOR
It seems to be generally accepted that children of
tender years should be left in the custody of the Mother.
However there is no hard and fast rule, but in the great
majority of cases unless there are strong arguments to the
contrary the mother will be awarded custody of the very
young children as the children need the care of their
mother and the father is probably not able to look after
the children because he is working all day.
GUARDIANSHIP VIS-A-VIS RIGHTS OF ACCESS
Custody does not mean exclusion of rights of access.
Any parent who has been deprived of custody of the
children still retains the status of guardian of those
children and he or she must be consulted on all matters
affecting the welfare of the child. Thus in making its
Order, the Court merely deprives the "losing" parent of
one of the attributes of guardianship (i.e. custody). A
Custody Order is never final and the parent deprived of
custody can always reapply to the Court to have the
matter reconsidered. Consequently, any parent who has
been awarded custody can never be guaranteed that he or
she will always retain the right to custody. Generally the
Court will grant the parent who has refused the right to
custody, rights of access on stated intervals.
COSTS
The nature of guardianship proceedings is such that the
costs tend to be fairly high. There is as yet no state legal
aid.
CONCLUSION
Of all areas of law that Solicitors are called upon to
deal with, this must be one of the most trying and difficult.
It is probably fair to say that many such cases will always