Man loses contest to father his own child
I A father has lost custody of his son to the boyfriend of the child’s late mother, but nobody noticed, writes John Waters
MAGINE that, following the death of a child’s father, the entirely irreproachable mother was required to enter into a competition with the girlfriend of the deceased man to win the right to continue parenting her own child. Imagine if she were to lose.
Were it ever to happen, I’m sure we would hear all about it. Irish society would take to the streets. There would be demonstrations outside Leinster House. Newspapers would publish editorials about the shocking abuse of the human rights of the mother and her daughter. Liberal politicians would jump up and down, maybe even shed tears in the Oireachtas. Perhaps someone would make a speech from the stage of the Abbey Theatre. Twitter, for sure, would go crazy.
Still, relax, my liberal friends. This has not happened.
But here’s the thing: the essence of the story has in fact unfolded in this country in the past few months — just the other way around. In the above hypothesis, substitute the word ‘father’ for ‘mother’, and the word ‘boyfriend’ for ‘girlfriend’.
The case to which I refer was outlined in the tersest terms in a court report in the Irish Times 10 days ago. Since then, there has been not one word from the liberal, human rights-protecting sectors of Irish society — no marches, no editorials, no Twitter mob, no Abbey speech, no tears in Leinster House.
The couple in this story had been living together at the
‘The judge appeared to disapprove of the fact that the father had argued about his Constitutional rights as a parent’
time of the birth of their son in 2003. The father was present at the birth of his son and he, the mother and their child lived together as a family for the next three years, although, as the mother was claiming social welfare, this cohabitation was necessarily surreptitious. (This is a widespread practice in Ireland today, arising from the state policy of paying benefits to the mother only if the father is shown to be absent. )
In 2005, the couple became engaged, but their relationship foundered almost immediately and they separated in the summer of 2006. Shortly afterwards, the mother began a new relationship, which presently became a live-in arrangement. Despite this, the father continued to see his son regularly, including an overnight arrangement once a week. The father was also, by coincidence, the trainer of the soccer team of which his son was a member, and therefore saw him on other nights as well.
It became clear, however, that the mother’s new boyfriend considered himself the boy’s father, and there ensued a number of episodes when this became a source of tension. For instance, when the boy was receiving his First Communion, the boyfriend insisted he wear his (the boyfriend’s) Communion medal, rather than that of his father.
An issue which surfaced recurringly in the course of the court case was the alleged failure of the father to pay maintenance. In fact, the mother had refused to allow him to pay money into her bank account, and he had therefore supported his son by himself, buying whatever clothes, schoolbooks or sports gear he needed, on the days the boy was with him.
In 2010, the mother fell ill with cancer, from which she was to die in February 2012. After her death, the boy continued living in the home he had shared with his mother and her boyfriend. Arising from the evidence of the boyfriend, who claimed that the mother had wished the boy to remain with him, a court appointed both men and the child’s maternal grandmother as guardians to the child, but the boy was to remain living in the “family home” with the mother’s boyfriend, and the father was awarded additional access. The father notified the boyfriend that he would be applying to court for full custody of his son.
In the Dublin Circuit Family Court 10 days ago, Judge Catherine Murphy said that she must make “the best interests of the child” her paramount consideration. She granted custody of the boy, who is now 11, to the man who slept with his mother for the previous seven years, confining the father to 10 nights per month “access”.
The judge appeared to justify her judgment on family reports carried out by two different psychiatrists after the death of the child’s mother. Both recommended that the boy stay where he was. One claimed that a move to his father’s home would “create further significant loss” and could “reduce the child’s resilience” when older. Another psychiatrist in her report described the child as bright and sociable and said she “believed” the child wished to remain with the mother’s partner. In evidence, she said that “no matter how perfect” the situation offered by the father, she would not recommend that the child be moved.
The judge did not speak with the boy, but rejected the father’s claim that the author of that report was biased or prejudiced against him. The maternal grandmother is supportive of the father and, it emerged, believes her daughter’s boyfriend entered prematurely into a new relationship after her daughter’s death.
Judge Murphy noted the mother’s partner had been “closely and actively involved” with the child and said a “deep and real bond” existed between them. She did not highlight any deficiency in the involvement of the father with his son, or any absence of love or connection between them. Indeed, she said that the natural father had “stated clearly” the child was “his life”, and that his “genuine love” could not be doubted. However, she said, the relationship between the two men had become increasingly strained and there had been “hostile exchanges”, which had often required the grandmother to act as a “conduit”. These disagreements has arisen about matters such as which school the boy should attend, and also sports events. Judge Murphy said a disproportionate amount of hostility appeared to emanate from the father toward the mother’s partner and this posed “a serious and ongoing difficulty” for the child. She noted that the father had said that if he was given sole custody of the child, he would be generous about access, but she did not believe him. She did not say why she didn’t believe him, or why she accepted what the mother’s boyfriend said without question.
The boyfriend comes from a wealthy family and was represented throughout the proceedings by a full legal team. The father represented himself for most of the proceedings, employing lawyers only for the final hearing.
The judge appeared to disapprove of the fact that the father had advanced arguments about his Constitutional rights as a parent, drawing attention to the absence of any explicit extension of rights to the mother’s former boyfriend. Judge Murphy said that the father had thereby taken “a proprietary approach” and was more focused on his rights and entitlements than on what was in “the best interests of the child”, as defined by the Guardianship of Infants Act 1964.
The position of unmarried fathers in Irish domestic law remains as outlined by Finlay J in the case of K v W (1990): that the extent and character of the rights arising from the relationship of a father to his child — in the event of his not being married to the mother — should vary according to the circumstances in each case.
“The range of variation,” the judge said, “would, I am satisfied, extend from the situation of the father of a child conceived as the result of casual sexual intercourse, where the rights might well be so minimal as practically to be non-existent, to the situation of a child born as a result of a stable and established relationship and nurtured at the commencement of his life by his father and mother in a situation bearing nearly all the characteristics of a constitutionally protected family, when the rights would be very extensive indeed.”
The boyfriend of the boy’s late mother, and his new partner — the boy’s new ‘parents’ — have opted to live some distance away from the area in which the boy previously resided, which was close to where his father lives. Notwithstanding this, the father continues to train his son with the football team of which he is a member, two evenings a week. Afterwards, the father goes home alone, and the boy is taken to another house, some distance away, by his late mother’s former boyfriend.
The father will appeal this case. It will cost him several years’ income to do so. But virtually every Irish citizen has an interest in the outcome, for the implications of him failing to win custody of his son are as ominous for Irish society as for him and his beloved son.