The Netherlands
How can you prepare child relocation from or within The Netherlands? What if your child has been relocated to The Netherlands without your consent?
The Netherlands is part of Europe. The judgments of the European Court of Justice apply. And the Council Regulation (EC) No 2019/1111 of 29 June 2019 (Brussels II ter) is valid in The Netherlands. The Netherlands is a member of the Hague Convention on Child Abduction. Furthermore, the Netherlands is a Schengen country, which means that people can travel freely within those countries.
We will explain what that means for your options.
Country Reporter:
Martine Wernsen
Martine works as a lawyer and mediator at her firm Family Lawyer The Hague.
She created this website about child relocation and child abduction.
Martine will keep this page about the Netherlands up to date.
Lawyers and mediators in The Netherlands
We provide a list of lawyers and mediators in The Netherlands who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.
Parental authority: The Netherlands
Authority
If a child is born of a marriage or registered partnership, both parents automatically have joint custody of the child. Otherwise, only the mother gets automatic custody. The father can acknowledge the child before or after the birth. Since January 1st 2023, this will mean he will alsoautomatically have joint custody. There are a few exceptions:
– If someone other then the mother has custody over the child
– If the mother does not have custody, for instance because she is a minor
– If the mother is already sharing the custody with someone else
– If the father previously had custody over the child, but no longer has custody
– If the mother and the father at the moment of the acknowledgement agreed that the mother will have sole custody
– If the court gave permission to the father to acknowledge the child, without also giving the father joint custody.
If the acknowledgement was done before January 1st 2023, the father does not automatically have joint custody. Parents can easily file a joint custody request with the court together. The father can also apply for joint custody on his own. In that case it will first be dealt with at a hearing.
If you get married or enter into a registered partnership after the birth, you automatically obtain custody of children you have already acknowledged.
If you are married or in a registered partnership, adoption also automatically results in custody.
After a divorce, parents in principle retain joint custody.
Same sex couples
If the two mothers are married or have a registered partnership, they automatically get custody if they are both legal parents of the child. This is the case if there is no father according to the law (if the donor is anonymous or if the donor is known but has not acknowledged the child).
If two women adopt together, they both get custody. If one woman adopts the other woman’s child (partner adoption), she also obtains custody.
If two men are married or have a registered partnership, they can have joint custody over a child through a court decision. If two men adopt a child together, they will automatically have joint custody.
If a man marries or enters into a registered partnership, he can only obtain joint custody after a court decision. If two men adopt a child, they both automatically obtain custody.
In addition to parental authority, there is guardianship. In that case, custody is exercised by a third party or by a certified institution.
Traveling with children: The Netherlands
If you want to travel abroad with your child, you need permission from the other parent, if the other parent also has custody. You can download a consent form from the website of the Dutch government.
The countries that are members of the Schengen Agreement do not carry out standard border controls.
When travelling by plane, passengers are asked for the consent forms when it seems relevant. These checks do not offer 100% certainty. If you fear that a parent will try to travel with a child to another country without your consent, you can contact the Public Prosecution Service to report a possible child abduction.
Child relocation: The Netherlands
Substitute permission
If a parent wants to move with the children and the other parent with custody refuses to give permission, the parent who wants to move can request permission from the court. This request is treated as a dispute of parental authority (art. 1:253a BW). The request will be dealt with on a court hearing within 6 weeks. In deciding the dispute, the court must consider not only the children’s best interests, but all the circumstances of the case and weigh all interests.
The court has jurisdiction if the children have their habitual residence in The Netherlands.
Criteria
The judge will judge the case on the basis of the following criteria:
- Is there a need to move?
- The extent to which the move has been thought through and prepared;
- The alternatives and measures offered to mitigate and/or compensate for the consequences of the move for the children and the other parent;
- Communication between parents;
- The rights of the parent(s) and the children to continue contact with each other and their familiar environment;
- The division of care responsibilities and the continuity of care;
- The frequency of contact between the children and the other parent before and after the move;
- The age of the children and the extent to which they are rooted in their environment;
- The extra costs of dealing with the move
Preventing relocation
If the other parent wants to prevent the move, he can ask the court in summary proceedings to impose a relocation ban. A parent who does not have custody can still ask for a removal ban in summary proceedings, if the move puts the contact arrangements under pressure. If the parent without custody has already submitted an application for joint custody to the court, the court can also impose a relocation ban.
In the event of an impending child abduction, the Public Prosecutor’s Office and the border police can be contacted.
Related blogs:
Child abduction: The Netherlands
Hague Convention
The Netherlands is a party to the Hague Convention on Child Abduction. The obligations that the convention creates are elaborated in the Implementation Act international child abduction.
Government
For more information, you can contact the Centre IKO. The IKO also provides cross-border mediation through the Mediation Bureau.
The Central Authority is a first point of contact if you want your children to return. They will forward your request for the children to return to the other parent and offer mediation. They will give the other parent two weeks to respond. You are not obliged to contact the Central Authority first.
Court procedure
In the Netherlands all child abduction cases are heard by the District Court in The Hague and after appeal by the Court of Appeal in The Hague. These courts are specialized in these cases. The District Court in principle gives its judgment within 6 weeks. This also applies to the Court of Appeal. A special judge has been appointed, who can have judicial communications with judges from other countries if so desired in any case.
Child participation
Children can have a child talk with the judge if they are 6 years old or older. If the court finds it necessary in the best interest of the child a special curator will be appointed who will meet with the children and write a report about it to the court.
Mediation
Mediation will be urged at all stages. Both by the Central Authority and by the court, both before the hearing, as well as during the first direction hearing.
Execution
When the court issues a judgment ordering the return of the children, it almost always sets a date for the return that falls after the expiration of the appeal period. If the other parent appeals, this will in principle mean that the children will be allowed to stay in the Netherlands until the Court of Appeal has ruled as well.
You can ask the court to decide that the abducting parent must pay the expenses made in connection with the abduction and the return of the child.
Your lawyer can ask for the ‘Cooperation protocol regarding mandatory enforcement of return order in international child abduction cases’ to be applied.
Prevention
If you think your child is in the Netherlands, but you do not know exactly where, the Dutch Central Authority can help you locate your child.
If you fear that your child will be abducted from the Netherlands to another country, or otherwise disappear from view, various measures can be taken:
- child’s passports to be deposited with authorities
- alleged abductor’s passport to be deposited with authorities
- issuing border and/ or port alerts
- temporary placement of child in institutional care.
In urgent cases, you can make a report to Customs through the police or the Public Prosecutor’s Office. Volunteers are always available through the Center IKO who can put you in touch with the right person.
Legal aid
A parent who does not live in the Netherlands, but who does need a lawyer in the Netherlands, may be eligible for subsidized legal assistance, depending on his/her income and assets. You can read more on the website of the Legal Aid Board.
For more details: check the country profile of The Netherlands on the website of HCCH.
Criminal law : The Netherlands
Criminal law
The intentional removal of a minor from legal custody is punishable under Article 297 of the Criminal Code. The Public Prosecutor’s Office can prosecute even without the report of the aggrieved parent. The Public Prosecutor’s Office is also the only party that can withdraw the prosecution. Not cooperating in a visitation arrangement can also be seen as withdrawing from the custody of the other parent.
There are two guidelines for criminal proceedings concerning the withdrawal of minors from legal custody.
Relevant websites : The Netherlands
Permission form to travel with children
www.government.nl : Concent letter for minors traveling abroad
Implementing act
www.wetten.nl : Uitvoeringswet internationale kinderontvoering
Centrum IKO
www.kinderontvoering.org : International Child Abduction Center
Mediation Bureau
www.kinderontvoering.org : Het Mediation Bureau
Central Authority
www.rijksoverheid.nl : Centrale autoriteit Internationale Kinderaangelegenheden
Subsidized legal aid
Blogs about The Netherlands
The guardian ad litem in the Netherlands
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De bijzondere curator in Nederland
De bijzondere curator in Nederland wordt benoemd door de rechtbank na de eerste zitting, wanneer duidelijk is geworden dat er een inhoudelijke behandeling van de zaak zal moeten plaatsvinden.
Child abduction: is it always the mother?
Child Abduction: Is it always the mother? When the Hague Convention on Child Abduction was written, it was in most cases the father who decided to bring the child back to his home country. The father would then take care of the child himself or leave the child in the...
Relevant case law in The Netherlands
Return order not required
Return order not required The removal or the retention of a child is to be considered wrongful if this is happening without consent of the other parent with custodial rights. That parent can choose to start a Return procedure, to ask the court for a return order. But...
The meaning of an Article 15 declaration
The meaning of an Article 15 declaration In a child abduction case, a parent can produce an Article 15 declaration. This is a declaration by the court in the country of origin that the child's removal or retention in the other country is wrongful. Using my client's...
Child’s opinion not decisive
In this court procedure in The Netherlands the child's opinion was not decisive, even though the child was 10 years old. District court The Hague, The Netherlands 15 October 2021, ECLI:NL:RBDHA:2021:11036 Mother asks permission to relocate The mother again asks for...
Lawyers and mediators in The Netherlands
