Arnhem Court of Appeal, The Netherlands
May 24, 2022, ECLI:NL:GHARL:2022:4136
After the divorce, the father and mother both lived in the same residence. The court had rejected the mother’s request to move with the children (8, 10 and 12 years old) to another city. The mother moved anyway and also appealed.
The Court of Appeal upheld the decision of the District Court. The mother is not granted permission to move. In addition, the Court of Appeal determines that from now on the children will have their primary residence with the father. They will stay with the mother 3 weekends a month.
The Court of Appeal sees no reason to remove the children from their familiar living environment. The Court believes that the father is better able to offer the children (emotional) space for contact with the other parent. The Court also believes that the mother puts too many decisions in the hands of the children (such as where they want to live and how often they want contact with the other parent) and therefore unnecessarily increases the pressure on the children and the situation. The mother appeals more than the father to the children’s loyalty and resilience, and that is not in their best interest, the Court believes.
The fact that the eldest has indicated that she misses her mother when she is with her father is not a decisive argument. Missing the other parent at times is inherent in a divorce situation, the Court believes.
The Court of Appeal considers it important that all three children grow up together and have their main residence with the same parent.
In these proceedings, the two youngest children had asked the Court if they could also talk to the judges to express their opinions. (In the Netherlands, normally only children 12 years and older are offered the opportunity to talk to the judge(s)). The Court found that the opinion of these children was sufficiently reflected in the report of the Child Protection Board. In addition, through and with the help of the staff of the Rechtswinkel (organization for free legal advice), the children had already written a letter to the Court stating their views.
The judgment does not state whether the mother played a role in the contact between the children and the Rechtswinkel and in submitting their request to be able to talk to the judges. Anyway, the Court did its best to remove responsibility from the children.