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.

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

Decision making model

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, but then 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 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.

 

Decision making model

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:

  1. Is there a need to move?
  2. The extent to which the move has been thought through and prepared;
  3. The alternatives and measures offered to mitigate and/or compensate for the consequences of the move for the children and the other parent;
  4. Communication between parents;
  5. The rights of the parent(s) and the children to continue contact with each other and their familiar environment;
  6. The division of care responsibilities and the continuity of care;
  7. The frequency of contact between the children and the other parent before and after the move;
  8. The age of the children and the extent to which they are rooted in their environment;
  9. 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.

Child abduction: The Netherlands

Decision making model

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.

Decision making model

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.

Decision making model

Blogs about The Netherlands

 

Is child abduction a criminal offence?

Is child abduction a criminal offence?

In the Netherlands it is a criminal act to keep a child from the person(s) who has custody over the child. It is called ‘withdrawal from authority’. This criminal act is described in article 279 of the Dutch Criminal Law. The Dutch prosecutor’s office has written a...

Child interview in The Netherlands

Child interview in The Netherlands

The Convention does not demand the court to talk to the minor. However, EU countries (exept Denmark) are bound by the Brussel II bis regulation. Article 11 of his regulation states that in an abduction court procedure, the child must be given opportunity to be heard....

How to contact the Dutch Central Authority

How to contact the Dutch Central Authority

The Dutch Central Authority (Centrum IKO) is the first organisation to talk to if you want to file a return request yourself without starting a court procedure yet. They will do some research before deciding if they will accept your request. And then they will start...

Relevant case law in The Netherlands

12 months of suspended prison sentence

12 months of suspended prison sentence

District Court of Gelderland July 1 2022, ECLI:NL:RBGEL:2022:3355 The mother withdrew her three-year-old daughter from the father's legal custody for 14 months. Now she gets a suspended prison sentence with probation and she must pay damages.  Unknown address The...

How not to involve the children

How not to involve the children

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...

Permission to move not required

Permission to move not required

Court of Midden-Nederland, The Netherlands 9 June 2021, ECLI:NL:RBMNE:2021:2432 A parent does not need (replacement) permission to move, if the child does not move with him. The parents have joint custody of the child. The child is registered at the mother's address....

Lawyers and mediators in The Netherlands

Martine Wernsen

Martine Wernsen

Lawyer

Den Haag, Zuid-Holland
Versteegh c.s. Advocaten