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You are > Home > Q: My daughter recently went through a bitter split with her partner caused mainly by his inability to control a bad drinking habit and the effects this has had on their lives.
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Thursday, July 09, 2009
Q: My daughter recently went through a bitter split with her partner caused mainly by his inability to control a bad drinking habit and the effects this has had on their lives.
They have one child aged 5 who now lives with her. My daughter is denying her partner access to their child but now his mother is claiming that she will apply for access – can she do that?
A: Yes, it is possible for a grandparent to apply to the court for an order permitting them to have access to their grandchild. Access is the right to see, to be with, and to communicate with a child and is different from custody which involves the actual physical control and day-to-day care of the child. In your daughter’s case, she has custody of her child.
The father of a child can always apply for access, but under The Children’s Act 1997, grandparents and other relatives, and indeed other people who may not be relatives, but people who may have acted in the place of parents ("in loco parentis") – to a child also have the right to apply to court for access to that child.
In your situation, the application by the other grandmother for access would be made to the District Court and it is a two-step process. She must first apply to the Court for permission to make the application. In this initial hearing the Court takes into consideration the particular connection the applicant has with the child, what risk there might be of disruption to the child’s life and what the wishes of the child’s guardians are in the matter. The guardians of the child must receive notice that the application will take place.
As your daughter and her partner have not married, she will automatically be the sole guardian of her child, unless she has previously agreed with her partner for him to become a joint guardian. The guardian of a child is the person legally responsible for a child’s overall welfare, to maintain the child and to properly care for him or her.
If the Court does decide that the other grandmother can make the application, it will then decide on what terms and conditions an order for access might be made. In making this decision, the most important consideration which the Court will take into account will be the best interests or welfare of the child. This is a central concept in Irish family and child law. The key issues which the Court will assess when considering the best interests of the child will be the religious, moral, intellectual, physical and social and emotional welfare of the child.
It is important to bear in mind that the right of access is ultimately a right of the child and if there is any conflict between what might be the best interests of the applicant grandmother and the child, the rights of the child will take priority.
A court is also required to take into account the wishes of the child but this is dependent on the age and the level of understanding of the child. In your daughter’s case, given the very young age of her child, it is unlikely that the Court would take the child’s wishes into account.
It is also important to remember that access orders are never final – it is always open to either parent, or any other permitted applicant, to apply to the Court to vary an access order if they can show the Court that this is in the best interests of the child. This often happens when circumstances change.
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