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Family Law Solicitors

Natural father fails in bid for sole custody

Friday, 1 August 2014

The Irish Times

by Fiona Gartland

A natural father who applied for sole custody of his child following the death of the child’s mother has lost his application at the Dublin Circuit Family Court. Judge Catherine Murphy ruled sole custody should instead be granted to the deceased mother’s partner, with access for the natural father of 10 nights a month.

Delivering her judgment yesterday, the judge said the court must make the best interests of the child its paramount consideration. The natural father had regular access to the child prior to the mother’s death, though he did not pay maintenance and maintenance was not sought. After her death, his access was increased, but the child remained living with the mother’s partner.


The mother’s express wish had been the child would remain living with her partner, Judge Murphy said, and after her death, a court appointed both men and the child’s maternal grandmother as guardians to the child.

Judge Murphy noted the mother’s partner was “closely and actively involved” with the child and a “deep and real bond” existed between them.

She also said the natural father had stated clearly the child was “his life”, and his “genuine love” could not be doubted.

But the relationship between the two men had become increasingly strained and there had been “hostile exchanges”, with the grandmother often having to act as a “conduit”.

There had also been tensions around issues including which school the child would attend and around sports events, the judge said. The grandmother also had issues with her daughter’s partner because she believed he had entered a subsequent relationship prematurely after the death of her daughter.

Judge Murphy highlighted a psychiatrist’s report, prepared following the mother’s death, which recommended the child remain where he was. A move to his natural father’s home would create further significant loss, the report said, and could reduce the child’s resilience when older.

A more recent psychiatrist’s report ordered by the court made the same recommendation. It described the child as bright and sociable and its author also said she believed the child wished to remain with the mother’s partner.


In evidence, the psychiatrist said no matter how perfect the family of the unmarried father was, she would not recommend the child be moved.

The judge said she did not accept claims by counsel for the natural parent that the author of the second report was “biased or prejudiced” against him.

Judge Murphy said a disproportionate amount of hostility “appeared to emanate” from the natural father toward the mother’s partner and this posed “a serious and ongoing difficulty” for the child. She noted he had said if he was given sole custody of the child, he would be “generous” about access, but she did not believe that would be the case.

The judge said the natural father had argued in court about his rights under the Constitution and the absence of rights of the mother’s partner. He had taken “a proprietary approach”, she said, and was more focused on his rights and entitlements than on what was in the best interests of the child.

The Guardianship of Infants Act 1964, which states “the welfare of the infant as the first and paramount consideration” applied in the case, Judge Murphy said.