For a long time now, Ireland has been trying to reform its family law. The latest, and in my understanding final, result of the process prior to actual legislative enactment is this report by the Law Reform Commission. It’s entitled “Legal Aspects of Family Relationships,” and, while far from perfect, would constitute a modest leap forward in father’s rights.
The report includes the Commission’s concrete recommendations, model legislation and reasons supporting the suggested reforms.
Perhaps the most important recommendation reads as follows:
[A]ll parents should be treated equally in respect of their relationship with their children regardless of gender or marital status.
That’s a far cry from what occurs today. Principally, if the recommendation is enacted into law, single fathers will automatically be treated as parents, with all the rights and duties of mothers and married fathers. As things stand now, single fathers have no rights at all in Ireland unless they go to court and obtain a court order. Single mothers aren’t treated that way; they have automatic parental rights based solely on their biological relationship to their children.
And of course, like all other countries in the West, out-of-wedlock childbearing has been on the rise in Ireland for many years. So the status of single fathers and their ability to assert their parental rights becomes more important with each passing year.
But don’t be deceived; the Commission’s recommendation that mothers and fathers be treated equally in no way signifies joint custody or equal parenting. It only means that courts can’t discriminate on the basis of sex.
To illustrate, if a court decides, as they so often do, that the child’s primary caregiver during a marriage should get the lion’s share of parenting time post-divorce, that will not run afoul of the recommendations. Why? Because if the father is the primary caregiver, he’ll get primary custody; if it’s the mother, then she will. There’s no discrimination on the basis of sex, but the law would still allow courts to do what they already do – honor childcare over financial support in their custody rulings.
Intriguingly, the Commission also recommends that Ireland require accurate information on birth certificates. Footnote 10 points out that this information serves several purposes.
The second is to ensure that people know who their parents are and this ensures a sense of identity and is also important for succession law. It also means that people know who their relatives are which assists to prevent people within the prohibited degrees from entering into relationships with each other.
That strongly suggests that mothers would no longer be free to misstate who the father is or claim the father is unknown to her. In the vast majority of cases in which a woman isn’t certain about who the father of her child is, she can narrow it down to a very few possibilities. In that case, each man should be informed, genetic testing performed and the correct man identified as the father. In no other way can actual fathers come to know and care for their actual children.
The Commission acknowledges that often, fathers are unaware of the birth of their child. I’ve inveighed against the practice of mothers being empowered to inform a father of his child or not at their discretion. The Commission takes a stand against the practice by recommending the joint registration of parents on birth certificates. That is, both parents need to be named.
More importantly, that naming is the trigger mechanism by which an unmarried father’s rights and responsibilities come into being. As I read the report, without his name being on the birth certificate, a father’s rights cannot be abridged. If I’m right, that would be a huge improvement over the status quo in which the passage of time alone can act to dispossess a father of his parental rights.
The recommendations would require that a man named as the father by a mother be informed that he’s been named and be allowed 28 days to contest the matter. That would include filing a contest with a district court requesting DNA testing.
But as usual, there’s a catch. Actually there are two catches. One is the standard domestic violence catch. The Commission recommends that mothers don’t have to tell who the father is “if she fears for her safety and/or the safety of the child…” In short, it’s a get-out-of-the-obligation-free card.
Likewise, if she “honestly does not know the identity of the father,” she’s under no obligation to disclose his identity. The problem with that, as I’ve said many times before, is that a woman who has sex with John on Friday and Jim on Saturday, “honestly does not know the identity of the father” of any resulting pregnancy. So she can “honestly” so attest and be clear of any obligation to identify him.
But she “honestly” does know that it’s either John or Jim and should be required to give each man notice, an opportunity to ascertain the paternity of the child and the ability to exercise his parental rights. The failure to ensure the father’s rights in this fairly common occurrence will, as it already does, hamstring fathers in their quest for full relationships with their children.
I would encourage readers to email the commission at info@lawreform.ie and protest this obvious and easily remedied blow to fathers’ rights in Ireland.
There’s some good in the reform package, but it clearly goes nowhere near far enough to protect fathers and the children who want and need real relationships with them.