Q. I am a middle-aged man with a son from a previous relationship. His mother and I broke up some five years ago. My son is now six. The split was amicable and his mother and I always got along, there was never any difficulty with me visiting and spending time with my son. Unfortunately, my son’s mother has now entered into another relationship and I find that when I go to schedule visits to see my son, he is not actually at the house. I feel that my rights as a father are being marginalised. Surely I have a right to see my own son? Can I become my child’s legal guardian?
Dear Reader,
It’s not clear to me whether or not you are named as the father on the child’s birth certificate, if you are then an application by you to be appointed guardian can be dealt with relatively informally.
As a rule, where a child is born outside marriage, the mother has a right to guardianship and custody of that child. Unfortunately, the same does not apply to the father of the child born outside marriage.
The Status of Children Act 1987 may assist you in this case. The Act makes provision for you as the natural father of a child born outside marriage to apply to be appointed guardian of your child and to seek custody and/or access to your child. Unfortunately, if your child’s mother is not willing for you to be named as the child’s guardian by consent, then you will need to apply to the District Court.
If for some reason you do not obtain the necessary court order then the child’s mother will remain the child’s sole guardian.
As regards access to your son, again if you are bringing an application to the District Court in relation to guardianship, you can at the same time bring an application requesting the court to make a court order setting out access arrangements with your son which the child’s mother will have to adhere to.
Obviously consent applications before the District Court are far more preferable and less stressful on all parties than contested cases. In this regard you should approach your son’s mother again with a view to her consenting to you being named as guardian and also you could set out a schedule of agreed access arrangements and hand that in to court to be ruled as a court order.
