Planning to move abroad with your child (or children)? Don’t forget to obtain the other parent’s consent!
If you’re an expatriate currently living and working in the Netherlands and you are planning to move abroad with your child (or children) in the near future – whether to your home country or to another country – please bear in mind that you generally need to obtain the permission of the child’s (or children’s) other parent.
If the other parent refuses to give his or her permission, you can apply to the court for what is known as ‘proxy consent’ (vervangende toestemming). which means that the court’s consent takes the place of the other parent’s consent.
If you hold joint parental responsibility for your child and you are planning to move either to your home country or to another country, you will need to obtain the other parent’s permission in order to do so. This applies whether you’re married, in a registered partnership or divorced. The idea behind this is to prevent children from being abducted by one of their parents. If you remove a child without the consent of a parent who holds parental responsibility, this may be regarded as being a case of international child abduction, which is a criminal offence.
Who has parental responsibility?
The next question is whether both parents automatically have parental responsibility over the child in question. The rules on parental responsibility tend to vary from one country to another, which is why international families living in the Netherlands (i.e. where at least one of the parents is an expatriate) are advised to look into the Dutch law on parental responsibility. This is because parental responsibility depends in part on the place where the child normally resides, i.e. his or her ‘habitual place of residence’.
Let’s say, for example, that you and your partner got married in France and that you lived for some time in France, which is also where your children were born. You decided at a certain point to move to the Netherlands. Having lived here with your children for a period of five years, you and your partner then decided to split up. Now that your divorce has formally been pronounced, you want to move back to France, taking the children with you. Since the Netherlands is now the children’s habitual place of residence and is their ‘permanent centre of interests’ (to use the legal phrase), it is Dutch law that determines which of the parents holds parental responsibility.
The Dutch law on parental responsibility
Under Dutch law, if your children were born while you and your former partner were married, you and your former partner automatically hold parental responsibility for the children.
However, if your children were born ‘out of wedlock’, i.e. to unmarried parents, in theory only the mother holds parental responsibility. Contrary to popular belief, the fact that the father has acknowledged the child does not automatically entitle him to exercise parental responsibility. Although the man becomes the child’s legal father by acknowledging him or her, the parents still need to make a joint application to the court for both of them to be able to hold parental responsibility. If the mother does not want the father to have parental responsibility, the father is entitled to apply himself to the court.
This is the law as it stands in the Netherlands. Other rules may apply in other countries.
Planning to move abroad? Obtain the other parent’s consent, preferably in writing
In the above example, Dutch law states that both parents have parental responsibility for their children, which means that a parent wishing to move abroad together with his or her children must obtain the other parent’s consent in order to do so.
Although there is no specific consent form for a situation in which a parent wishes to move abroad, it is advisable to obtain the other parent’s consent in writing before arranging the move. This avoids any unexpected problems from cropping up at a later stage.
What if the other parent withholds his or her consent?
If the other parent disagrees with your plan for moving abroad with your child or children, you can apply to the court for what is known as ‘proxy consent’ (vervangende toestemming).
It is important to bear in mind that the legal procedures involving relocations can easily be protracted, particularly if the destination is in a foreign country. They also tend to be emotionally charged and very unpredictable (given that you and your former partner both have different interests to defend as well as your own specific versions of events). The court is interested primarily in assessing the interests of the child or children involved, i.e. is the move in their interests? The court also examines both your own interests and those of your former partner. The court applies a range of criteria in deciding whether to grant proxy consent.
Planning to move abroad with your child and keen to find out what rules apply in your specific situation?
Please feel free to get in touch with me (or one of my colleagues from the family law practice at RWV Advocaten) if you have any queries after reading this article.
Planning to travel on your own with your child? Don’t forget to obtain the other parent’s consent!
If you’re planning to take your child (or children) with you on a foreign trip, you need to make sure that your partner or former partner has given his or her consent. This applies whether you’re married, in a registered partnership or divorced. It also applies if you do not have parental responsibility for your child and still wish to take him or her with you on holiday: you need to obtain the consent of the parent who holds parental responsibility with you. You can read more about this in an article entitled Get permission from the other parent if you're planning to take your child (or children) with you on holiday!
This is an article by RWV Advocaten