In practice, we see that there may be confusion between the concepts of “parental authority”, a term that is used in the Netherlands, and “custody” a term that is often used abroad. In this article, Lucienne of GMW lawyers will elaborate on these terms and how they might affect expats in the Netherlands.
What is parental authority and how do you obtain parental authority in the Netherlands?
If you have parental authority, you are responsible for the care and education of your child. With parental authority, you may, among other things, manage the assets of your child, perform legal acts, and make decisions about medical treatment, school choices and relocations.
The mother from whom the child is born automatically (“by operation of law”) has parental authority over the child. The father or co-mother obtains this right automatically if he or she is married to or has a registered partnership with the birth mother. For a co-mother, the (known) donor may not have already recognized the child.
If a child is born out of wedlock or in a registered partnership, joint parental authority can be applied for at the court. The co-mother or father must have recognized the child (this is done at the municipality), for example, when registering the birth of the child. If a parent does not cooperate in obtaining parental authority, the court may be asked for substitute permission. For this proceeding, you need to have the assistance of a lawyer. As a parent, it is important to get this parental authority so that you can make important decisions about your child(ren).
Politicians are working on amending the law to give parents who recognize the child also automatically the parental authority, so that they are no longer dependent on the consent of the other parent. If parents separate and they have joint parental authority, in principle, both parents retain joint authority. If someone other than the parents has parental authority over the child(ren), then they have guardianship.
Is parental authority the same as custody?
The short answer is no. In the Netherlands, all minor children are under parental authority / responsibility (gezag) or guardianship (voogdij). Parental authority exists when the parents are responsible for the care and bringing up. The term custody is frequently used abroad. Custody has many similarities with parental authority, but the meaning is not completely the same, which makes it unclear in practice.
Abroad, a distinction is made between legal custody and physical custody. Legal custody means that a parent is allowed to make all important decisions about the child, such as choice of school, medical treatment and religion. Physical custody means that a parent has the right to house, care for, and raise the child and to make day-to-day decisions regarding the child. In the Netherlands, this distinction is not made and we do not know these “stripped down” forms of authority. A comparison is therefore difficult to make.
Does parental authority end when you divorce or separate?
When you and your partner separate and/or divorce, you both retain parental authority. This means that you and your (ex-)partner need to make decisions together about matters regarding the children. For example, where the main residence of the children is, what a care arrangement will look like and decisions about medical treatment, school choices and relocations. Only in very exceptional cases, the parental authority of a parent (after divorce and / or separation) can be terminated.
According to Dutch law, parents who separate and / or divorce, are obligated to draw up a parenting plan. This parenting plan contains agreements about the care and bringing up of the children and must include the following agreements:
- How the children were involved by drawing up a parenting plan
- What the care arrangement will look like and how parents will arrange the access to their children
- How often do you give each other information about the children
- How parents together make decisions about important issues, for example, the choice of school
- How the costs will be divided (child alimony)
Besides the agreements mentioned above, you can also include other agreements, like what you think is important in parenting: bedtimes, opinions on punishments, or contact with the family of a parent.
Does parental authority move with you to the Netherlands?
Each country has its own rules for obtaining parental authority. If you have obtained parental authority abroad by operation of law, but you did not have a registered partnership / marriage with the mother, you will retain parental authority when you move to the Netherlands. If you have not obtained parental authority abroad, but you would have parental authority in the Netherlands by operation of law, then you will acquire parental authority when you move to the Netherlands. This is stipulated in the 1996 Hague Child Protection Convention.
Please note: if guardianship or parental authority has been established by a foreign judicial decision, a decision will not always be recognized by law by the Netherlands. It is important here whether the Netherlands has a treaty with the country in question. If the Netherlands does not have a treaty with the country in question, you may have to submit a new application to the court in the Netherlands.
Does parental authority move with you from the Netherlands to abroad?
If you have legally obtained parental responsibility in the Netherlands and you move abroad, then, in principle, you will retain authority if the country is a party to the 1996 Hague Child Protection Convention. However, each country has its own rules and exceptions in this area and it is therefore advisable to seek legal advice in this area when moving abroad.
Do you have any questions about parental authority and custody in the Netherlands? Need some advice relating to your personal situation? Then do not hesitate to get in touch with GMW, their experienced and professional team of English-speaking lawyers are always happy to help.