Custody and Access
1. Custody and Access Arrangements
Court Orders in relation to access remain in place and should be complied with to the greatest degree possible in the circumstances. Children can move between parents’ homes for access and are not affected by the 5km restriction. Covid-19 cannot be used as an excuse to frustrate a court order, and any such breach of access orders is considered urgent by the Court. Parents are advised to have a copy of the court order with them when travelling for access.
The President of the District Court issued a very useful statement to provide guidance for parents on 29 October 2020:
Even where there is an Access Order of the District Court, parents are responsible for making decisions regarding the safety of their children. You are expected to make sensible and reasonable decisions for your child’s safety. Parents are reminded how important access with their other parent is to your children. Access ordered by the District Court must be facilitated unless it causes a real and substantial risk to a child’s health or safety.
It is important to remember that travel restrictions do not apply to access visits, this is not a reason to stop access over this period of greater restriction. Remember too that travel for children between households can mean greater risk to the child or to other vulnerable family members.
You should be able to take a common approach between your two households to public health guidelines to make lives easier and safer for your children and your families.
Discuss with each other what the new and increased level of restrictions will mean for you and your children over the next 6 weeks. Ensure that access continues wherever possible and that court orders are followed. Remember there may be serious consequences if a parent is found not to be supporting access as ordered with the other parent. If it is not safe to continue access as ordered, then try to agree what access can happen safely. If you can both agree an alternative, then it is ok to do this until the level of restrictions falls back again when access as ordered should resume. Keep a note of your agreement in writing, in an email or by text.
If it is not possible to follow the court order remember there are many ways to keep in contact especially through phone calls and video chats, but keep in mind that children may have a short attention span for these activities and these are only a substitute for face to face contact.
It is not always possible for people to make these changes without help. The Legal Aid Board's family mediation services remain open and are free, with no payment required. Mediation services are being provided through a blend of office, online and phone-based mediation. Mediation can help resolve issues with parenting plans, access and maintenance. For more information of services in your area go to www.legalaidboard.ie. For Dublin, email: firstname.lastname@example.org or Phone: (01) 672 5886.
If you cannot agree an alternative or come to a solution, you can make an application to your local court office for a court hearing to vary or change the access order.
If there is no Court Order in place and an arrangement has been working between parents, this should continue, save in exceptional circumstances. The District Court has also stated that you are free to temporarily vary by agreement the arrangements of a court order to suit current circumstances. Ideally this should be done by text or email so that you have a record of it. If there is difficulty in coming to an agreement, the Family Mediation service might be of assistance. A dedicated Legal and Mediation Information helpline has been established as part of the Legal Aid Board’s COVID-19 response – 1890 615 200. If mediation is unavailable or unsuccessful, the assistance of solicitors may help in achieving a temporary agreement. If you are experiencing or have experienced abuse from the other parent, you may also wish to contact a specialist domestic violence service for additional support and advocacy. See www.safeireland.ie for details of all domestic violence services in Ireland.
The current restrictions mean that every access order may not be fully implementable, but the responsibility and expectation of parents is to make every effort to allow children to continue to have access to the other parent in a safe, alternative way, where necessary. Even if there is a Court Order in place, parents can come to their own arrangements for additional or alternative remote contact, such as telephone/Skype/Facetime/ WhatsApp, to allow children to have extensive contact with the other parent. Parents should make a note of this temporary agreement by text or email. These Innovative ways of contact between parent and child must be used and encouraged.
Communication is vital at this challenging time and so parents need to ensure that communication is positive and that they keep each other updated on the health and wellbeing of the child/children and their own health. The health and safety of children and family members (especially the elderly, grandparents and those with an underlying medical condition) must be a priority. If a child has a compromised immune system, the health and safety of the child must take precedence and all measures must be taken to protect the child. The best interests of the child must be the paramount consideration. If one parent is living with his/her parents every effort should be made to ensure the grandparents are not put at risk.
It is important that common sense prevails in relation to access, in the current climate. The best outcome for children is for parents to contact each other to set out their concerns and suggest ideas for practical solutions that can be put in place. The health and safety concerns of parents, their children and the extended family need to be considered when sorting out arrangements.
Access with parents working in frontline services should continue as normal, except in exceptional circumstances. These parents will, of course, have received advice from their places of work in relation to contact with their families. This advice should be shared with the other parent and respected by all.
Those who fall within the category of one-parent families with children under 18, or people who share parenting or custody arrangements, are entitled to form a Support Bubble under the updated Level 5 resections. These bubbles allow two households to merge and form a social network with one another. The 5km travel rule does not apply to Support Bubbles. For more information on Support Bubbles, see here.
2. Court Applications
Following the Government’s updated restrictions to reduce interactions among people, the courts have given priority to Family Law and Child Care Law, dealing with urgent cases involving domestic violence and vulnerable people. Applications for breach of access are not generally considered to be urgent, but there may be exceptional cases and your solicitor will advise you in this regard.
The Practice Direction of the President of the District Court states that a case which does not come into the defined urgent category can be treated as urgent if a good case can be made. If you have a solicitor, you should contact him/her. If not, or if you cannot contact your solicitor, you can email your court office setting out the reasons why the case should be considered urgent. You, or your solicitor, should email the other side to let them know that you have applied, and they must be given a chance to set out their position. You will be notified of the Court’s decision by email.
Contact details for offices are available here.
3. Appointment of a Temporary Guardian
If the parent is suffering with a major illness at this time and is unable to exercise their guardianship duties as a parent, they can nominate a temporary guardian who will be then nominated by the Court. Details outlining the process of applying for guardianship can be found here.
Guardianship is the collection of rights and duties that a parent (or non-parent) may have in respect of a child. The guardian would have the right to make decisions in major areas of the child’s life e.g. consent to medical treatment and others. The guardian is also responsible and has a duty to maintain and properly care for the child.
When it is a parent guardian, they have the full collection of rights pertaining to the child which would encompass – religion, school, adoption, consent to medical treatments, passports and decisions about taking the child out of a country. However, when a court appoints a non-parent as a guardian, the court can decide which rights will be granted.
4. Additional Resources
One Family provides very useful guidance on access to help parents to make good decisions.
Barnardos has launched a national telephone support service for parents in response to the challenges they are facing during the Covid-19 pandemic. This service will be staffed by Barnardos project workers who are trained professionals – 1800 910 123, available Monday-Friday from 10am – 2pm.
Safe Ireland provides details of available domestic violence services across Ireland. They also provide information relating to domestic violence. A national freephone helpline is operated by Women’s Aid and is open 24 hours every day of the week 1800 341 900.
With thanks to the guidance received for the Family lawyers Association of Ireland