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AUTHORITY en Custody

AUTHORITY, custody, guardianship, court appointed guardian

Married parents and parents in a registered partnership automatically have parental authority over the children born during their marriage or registered partnership (Book 1, Article 245 of the Netherlands Civil Code [BW]). This authority will remain in place after the marriage, unless there are compelling reasons to entrust parental authority to one parent. (Wet bevordering voortgezet ouderschap en zorgvuldige scheiding [Continued Parenthood and Well-Planned Divorce Act] of 1 March
2009, Netherlands Bulletin of Acts and Decrees [Stbl] 2008, 500) refers to the following criteria in Book 1, Article 251(a) of the Netherlands Civil Code for granting one parent authority:
“There has to be an unacceptable risk that the child threatens to be trapped or lost between the parents and this situation cannot be expected to change within the foreseeable future; the change in parental authority is necessary in other respects in the interest of the child.”
Court decisions on this subject have demonstrated that a request for single parent authority is not granted easily. Parents are expected to have done their best demonstrably to communicate better with each other in the interest of their children.
Under Book 1, Article 253(t) of the Netherlands Civil Code – and provided it is in the interest of the child – a parent may also exercise authority with another person than the other parent, if that other person has a close personal relation with the child and they have been one family for some time.
Under Book 1, Article 252 of the Netherlands Civil Code, also parents who are not married and did not enter into a registered partnership, may have joint authority over the children. It is enough to complete a simple form that can be downloaded from the internet and to submit this form to the custody register.
Guardianship may be exercised by one guardian or two guardians jointly. The term `guardianship’ is reserved for other persons than the parents. Guardianship arises by court decision, by testamentary arrangement or by the death of the parent having authority and who exercised parental authority with a person who is not the other parent.
Even if a last will and testament provides that on the death of the mother, for instance, another person will become the guardian, in the event of a divorce the other parent who had authority previously, will retain authority and will exercise this alone from that moment.
Under Book 1, Article 253(a) of the Netherlands Civil Code, the court may be requested to give judgment on disputes between the parents exercising joint authority. This may concern the issuance of a passport, a choice of school or moving house.
For a trip abroad, a consent form from the other parent having authority is required.
Especially the question whether one of the parents is allowed to move outside or inside the Netherlands with a child that is under age without the permission of the other parent, has led to a flood of court decisions in recent years (see elsewhere on our website).
We are experienced in cases as the ones mentioned above and may be able to help you with this.
Any questions about the above or about another topic? Please call us at 070-3154000, or send a mail to: secretariaat@chambersadvocaten.nl.