I’m a Father on Social Welfare and my Ex is bringing me to Court.

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Q: My ex-girlfriend is bringing me to the District Court next month for maintenance for my 6 month old son. I am on social welfare and feel I shouldn’t have to pay her anything as she has a part-time job and also still lives with her parents. She hardly lets me see my son and when she does it’s always on her terms. Is there anything I can do to see my son more and will a court make me pay maintenance when I’m on social welfare?

A: Introduction:

The first thing I would recommend you to do, is go to the District Court and bring a custody, access and guardianship application returnable to the District Court for the same day as you ex-girlfriend’s maintenance application. It would be a very common occurrence for all four applications to be heard at the same time; however, you cannot ask for access or custody etc. if you do not have an application before the court.

Custody and Guardianship – People associate and confuse the word Guardianship with the word custody all the time but they are very different in Irish law. Married couples automatically gain custody and guardianship rights to their marital children. In relation to unmarried couples, a mother is automatically the sole custodian of her child and, similarly, is sole guardian.Custody essentially relates to where a child lives. Where a married couple separate and end up going to court, very often an order is made for joint custody with day to day care and control to one of the parties. This means that both parties will remain joint custodians but the child will essentially live with one parent and have access to the other. In regard to unmarried couples, an unmarried father must bring an application to court to become a custodian of his child. Guardianship is very important and relates to the decision making process in a child’s life. A  Guardian has a say in where a child lives, goes to school, medical issues etc. Any decision making in a child’s life must be made and agreed to by its guardian/s. Where a dispute arises in regard to a decision, the parties can go to court and a court can decide the issue. This process; however, should not be abused, as many Judges do not like making such decisions where it feels that the parents should be able to agree, for example, where a child will attend school. Many unmarried couples agree that the father should be a guardian to their child and the procedure is very simple as the parents can sign a form to that effect or go to court and do the application on a consent basis. Issues commonly arise where the unmarried parents do not get on or agree and the mother does not want or wish for the father to become a guardian. Although unmarried fathers have limited rights in Ireland and no automatic rights when it comes to their children, they do have a ‘right to apply’ under the Guardianship of Infant’s Act, 1964. Once an application is made in the District Court Office the mother and sole guardian of the child cannot leave the country with the child and not return. Another situation can arise where a mother leaves the country with a child without any court application pending. In this case, an unmarried father can make an application to the court within three months of a mother leaving the country and he is still protected as the child’s ‘habitual residence’ (a term initially introduced by European Law) will remain to be Ireland for the first three months after leaving the country. Once an application is made within the three month period Ireland has the jurisdiction to deal with the matter.

Access – in family law, every case and its outcome can vary greatly. Where a couple are married or have been together a long time, access can result in a practically 50/50 basis. Depending on what each party desires and what parties work schedule, commitments are etc. It is desirable, but cannot always happen, that parties agree the access arrangement between themselves as the parties lose that control when they enter a court room and the Judge decides for them. I am limited in the information in this case as I do not know how long the parties were in a relationship before their infant child was born. However, in circumstances where the child is only six months old it would be likely that a child of this age would not have overnight access with the father until he is older. The fact that the father is unemployed and the mother works part-time it would be ideal if the access could take place when the mother was at work and then neither party would be missing out on access to their child. Obviously this depends on the circumstances, for example, what hours the mother works. An issue can also arise where a mother does not feel comfortable leaving their child unattended with the father where there are trust issues or past incidents that would lead to such feelings. A court may order that access be supervised for a period of time for a father to bond with a child or gain trust of the mother. At this stage, with the very limited information I have, I would recommend that the father ask for one or two evenings per week and a Saturday or Sunday for a longer period of time with the child. Depending where the parties live, their relationship in how they get on, the mothers work hours etc. but with the father unemployed at this time he should be relatively flexible in when access can take place.

Maintenance – Like everything else maintenance varies from case to case. Where a father is unemployed, any maintenance order that is made by a court will be on the basis that he is unemployed at the time. If he gains employment the maintenance can be increased. In the District Court the parties will fill out a form that is called a ‘statement of means’. This form asks you to fill out, on a weekly basis, your income, expenses, assets, liabilities, any other court orders which you are making payments on and any other person which you are financially liable for.This information allows a court to examine your financial situation and determine what an individual can afford to pay in maintenance payments. I am asked if, since the father is on social welfare, whether he would be liable to maintenance payments for his child. The answer to that is yes. A father is responsible for the upkeep of his child. Maintenance can be paid on a weekly or monthly basis but in the District Court it is more likely to be on a weekly basis. Any maintenance, no matter how small, is very important for a child. Where an individual is in receipt of basic social welfare payments, depending on other liabilities and expenses, a maintenance payment of €30/€40 per week would not be uncommon. The court will examine whether a father lives with his parents or rents a property or has a mortgage to pay. Any other income a person may be in receipt of etc. and as a result the amount could be slightly smaller or bigger. This is why an individual must fill out a statement of means, as it provides the court with an instrument to ease itself in making a decision.

Conclusion:

It is always difficult to predict what a court will decide and for that reason I would not imagine giving a prediction. Every case in family law is different and really does depend on the facts and the circumstances the parties find themselves in. Every family law case is decided on the facts that present themselves in the court on that day. A court does not concern itself on what may happen next week or next month and whether a person might get a job or might get a promotion. A court has to decide a case on what is presented to it on the day of the hearing. Access and maintenance, whether brought before a court by themselves or whether they form part of a Judicial Separation or Divorce, are always subject to change. A party can always bring a case back to the courts where circumstances change and the current orders do not work or cannot work or be sustained anymore.

In this case, for the reasons outlined above, I would recommend that the father bring custody, access and guardianship applications so as to afford himself more protection as a father to his child. If a mother is being difficult in regard to access then a court order can be put in place and the father will know exactly what days and times he has with his child. In relation to maintenance, I would always recommend for a father to pay whatever he can afford for the care and upkeep of his child. The amount will clearly vary whether an individual is in full-time employment, part-time employment or unemployed and on social welfare. I would recommend the father in this case to put forward a proposal to his ex-girlfriend in relation to what he could afford to pay but, if this is not agreeable to her, then a court can decide in any event. In an ideal case the parties can agree in advance or on the day of the hearing and the terms of the agreement can be reduced to writing and handed into the court and this becomes the terms of the court order. If either party breach the order, they are in breach of a court order and the other party has that protection and can return to court. If the parties cannot agree to terms then the Judge hearing the case will decide the access arrangements and the appropriate maintenance to be paid for the benefit of the child. In this scenario, the Judge’s decision will form the content of the court order and again if either party breaches it, they are in breach of a court order and the other party can go back to court as a result.

LegalEagleStar ,  Thursday 3rd. February,  2011