Custody (also called parental authority) is - simply put - the right and duty to care for and raise the minor child. It also includes the right to make decisions about important matters in the child's life, such as parenting, education, health care and religion.
What is joint authority?
In the Netherlands, usually both parents have joint custody of their children if they are married or in a registered partnership.
The father who is not married to the mother and does not have a registered partnership will have joint custody with the mother as of Jan. 1, 2023, if he has acknowledged the child. If the child was acknowledged before Jan. 1, 2023, the father does not automatically have joint custody. Not even if the child was born after Jan. 1, 2023.
For unmarried or unregistered parents, whose child is recognized on or after January 1, 2023, there are a number of situations in which joint custody does not follow. The jurisprudence.com website clearly lists these exceptions (https://www.rechtspraak.nl/Onderwerpen/gezag). The exceptions are:
- there is already a guardian of the child (which can be an individual or an agency);
- no one has custody of the child (for example, the mother is a minor or is under guardianship);
- there are already 2 persons with custody of the child (for example, the mother with the stepfather);
- the recognizer has previously had custody of the child (the recognizer can apply for joint custody through the procedure request authority);
- the mother and the recognizer have jointly declared at the time of recognition that the mother will exercise sole custody (the recognizer and the mother can still apply for joint custody via the written request form; and
- recognition is with substitute consent of the righter established (the recognizer and the mother can still apply for joint custody via the written request form.
Article 1:253c paragraph 1 of the Civil Code (hereinafter BW) provides that the custodial parent of the child who has not exercised joint custody with the mother may request the court to entrust the parents with joint custody of the child. Article 1:253c paragraph 2 BW stipulates, in case the request is to entrust the parents with joint custody and the other parent with joint custody does not consent, that the request will be rejected only if:
a. there is an unacceptable risk that the child would be trapped or lost between the parents and it is not expected that this would improve sufficiently in the foreseeable future, or
b. rejection is otherwise necessary in the best interest of the child.
The ground for rejection mentioned under a. is referred to in practice as the "clamping criterion. The judge will then have to assess whether there is an unacceptable risk of the minor becoming trapped or lost between the parents. It should not be expected that this will improve sufficiently in the foreseeable future.
Do you retain custody after the divorce?
In a divorce, in principle, both parents retain custody unless the court decides otherwise.
Pursuant to Article 1:251a of the Civil Code, after dissolution of the marriage at the request of a parent, the court may determine that custody of a child is vested in one parent, if
- there is an unacceptable risk that the child would be trapped or lost between the parents and it is not expected that this would improve sufficiently in the foreseeable future, or
- modification of custody is otherwise necessary in the best interests of the child.
The ground for rejection mentioned under a. is referred to in practice as the "clamping criterion. The judge will then have to assess whether there is an unacceptable risk of the minor becoming trapped or lost between the parents. It should not be expected that this will improve sufficiently in the foreseeable future.
When can authority be terminated?
Parental authority ends when the minor child reaches the age of majority (18 years). In some cases, parental authority can also be terminated by a court decision. This is called a custody termination measure.
Termination of custody is the most far-reaching child protection measure. Pursuant to Article 1:266 paragraph 1 of the Civil Code (BW), the court can terminate the custody of a parent (among other things), if a minor grows up in such a way that he is seriously threatened in his development, and the parent is unable to take responsibility for the care and upbringing as referred to in Article 1:247 paragraph 2 of the BW, within a period of time acceptable to the person and the development of the minor.
Whether a termination of custody order is appropriate, the court must judge based on all the circumstances of the case. This means that termination of custody does not follow in every situation where the parents cannot ensure care and upbringing within an acceptable period of time. In cases in which it is clear from the beginning of the child protection process that a parent will not be able to assume parenting responsibilities within an acceptable time frame for the child, a custody termination can be made immediately. In such cases, a supervision order is not necessary.
It was mentioned earlier that during divorce proceedings, one of the parents may lose custody. The premise of the law is that parents exercise joint custody of their children. This requires that the parents be able to exercise joint custody and make decisions of importance about the children in joint consultation, or at least be able to agree in advance on situations that may arise. According to Article 1:251a, paragraphs 1 and 2, of the Civil Code (BW), the court may entrust one of the parents with parental authority if:
a. there is an unacceptable risk of the child being trapped or lost between the parents and it is not expected that this will improve sufficiently in the foreseeable future, or
b. modification of custody is otherwise necessary in the best interests of the child.
Is it possible to restore authority Authority?
Article 1:277, paragraph 1, of the Civil Code provides that the court may restore custody to the parent whose custody has been terminated at his request, if:
a. restoration of custody is in the best interests of the minor, and
b. the parent is permanently capable of assuming responsibility for the care and upbringing of the minor.
Need a lawyer for a custody case?
Disputes that arise over authority tend to hurt. These issues are often accompanied by serious recriminations. Through our involved assistance, we wish to provide you with both coaching and legal assistance. For more information about our possible assistance, please contact our office by email or phone. You can send an e-mail to info@klpadvocaten.nl or (during business hours) call 020-6731548.
