Authority, custody, guardianship, court appointed guardian
Married parents automatically have custody of the children born from their marriage (Book 1, Article 245 of the Netherlands Civil Code [BW]). This custody will remain in place after the marriage, unless there are compelling reasons to entrust custody 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). The Act – Book 1, Article 251(a) of the Netherlands Civil Code – lists the following criteria for granting one parent custody:
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 of custody is necessary in the interest of the child in other respects.
Court decisions on this subject have demonstrated that a request for single parent custody – especially after the Continued Parenthood and Well-Planned Divorce Act – is not granted easily.
The assumption is that adoption leads to joint custody.
Under Book 1, Article 253(t) of the Netherlands Civil code, a parent may also exercise custody with another person than the other parent, if that other person is in close personal relation with the child.
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 custody of 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 custody and who exercised custody 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 custody previously, will retain custody and will exercise this alone from that moment on.
Before 1995, the term `parental authority’ was used instead of custody. Parental authority would end by divorce and the caring parent became the guardian and the other parent became the co-guardian.
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 custody.
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.
Court appointed guardian or guardian ad litem (bijzonder curator)
Where there is a dispute between a child and the person exercising custody, the court may appoint a guardian ad litem to attend to the child’s interests. For a child is represented at law by the person having custody of him or her. A curator ad litim is always appointed when there is a denial of paternity and a conflict of interest may arise between parent and child, for it may be in the interest of the child to retain a legal father.
The guardian ad litem functions as a mediator. There is a growing body of opinion to appoint a guardian ad litem more often after a divorce where the parents fight each other and the children are trapped between the parents.
Marion Drielsma and Annette van Keulen are acquiring further skills to be able to act as guardians ad litem.