The Gazette 1977

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