Mother had sole custody, but must return the child

by | May 31, 2022

Supreme Court, Netherlands
October 15, 2021, ECLI:NL:HR:2021:1513
The mother with custody moved with the child to an unknown destination before the parties became joint custodians. Nevertheless, the court may decide that the mother must move back with the child.

The daughter was born in 2018. The father acknowledged her before the birth, but he has not yet obtained custody. In 2018, the court ordered the mother to cooperate with a visitation arrangement. In March 2019, the father last saw the daughter. In April 2019, the mother emigrated with the child to an unknown destination.

By order dated August 15, 2019, the court established joint custody, established a care and information arrangement, and determined that the mother must move back by September 1, 2019.

The Appeal Court saw no basis for requiring the mother to move back and set aside that part of the order. The father filed a cassation appeal.

The Supreme Court ruled that there are several grounds on which an order to move back can be based.

Access rights
The starting point is that a child and a parent have a right to access, even if the parent does not have custody. This right of the parent is guaranteed by Article 8 ECHR and Article 1:377a (1) of the Dutch Civil Code. This right of the child is also guaranteed by Article 9 paragraph 3 CRC and Article 24 paragraph 3 Charter of Fundamental Rights of the EU.

Article 1:247 paragraph 3 of the Civil Code states that parental authority also includes the obligation of the parent to promote the development of the ties of his child with the other parent. This applies to parents with joint custody and to parents with sole custody.

If the parent with custody does not comply, there is a basis for limiting that parent’s freedom of choice to determine the child’s place of residence. On the basis of Article 8 of the ECHR, the judge in such a case has to take all measures that are appropriate in the given case to persuade the parent with custody to cooperate in allowing access between the child and the other parent.

A prohibition to move, or an order to move back, can be an appropriate measure. An order to move back is still a less drastic measure than granting sole custody to the other parent. After all, the law also provides for the possibility of awarding sole custody to the other parent (Article 1:251a paragraph 1 BW and Article 1:253c paragraphs 1 and 3 BW).

Dispute settlement
In this case, the father had been granted joint custody after the mother moved out (by order of August 15, 2019).

Article 1:253a of the Civil Code states:
In the event of joint exercise of custody, disputes in this regard may be submitted to the court at the request of the parents or of one of them. The court shall make such a decision as it deems appropriate in the interest of the child.

In the case of joint custody, the court has the option, pursuant to Article 1:253a of the Civil Code, to give an order to the parent with whom the child has its primary residence.
The court can:
– prohibit living at a large distance from the other parent;
– order to move back, or
– order to settle at such a distance from the other parent that contact between the child and that other parent can take place.

The mother was a sole custodian at the time of her removal. She was therefore, in principle, free to determine the place of residence of her and the child. But on the basis of article 1:377a (1) of the Dutch Civil Code, the court could order her to move back. And once there was joint custody, the court could also, on the basis of article 1:253a Civil Code order her to move back.