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Last update: 15-02-2005
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Parental responsibility - Netherlands

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TABLE OF CONTENTS

1. What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility? 1.
2. As a general rule, who has the parental responsibility over a child? 2.
3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place? 3.
4. If the parents divorce or split up, how is the question of parental responsibility determined for the future? (by common agreement or by going to court) 4.
5. If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding? 5.
6. If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court? 6.
7. If the parents go to court, what issues can the judge decide upon relating to the child? 7.
8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent? 8.
9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice? 9.
10. To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application? 10.
11. Which procedure applies in these cases? Is an emergency procedure available? 11.
12. Can I obtain legal aid to cover the costs of the procedure? 12.
13. Is it possible to appeal against a decision on parental responsibility? 13.
14. In certain cases, it may be necessary to apply to a court or another authority to have a decision on parental responsibility enforced. Which procedure applies in such cases? 14.
15. What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in [name of Member State concerned]? Which procedure applies in these cases? 15.
16. To which court should I turn in ( Member State making the fiche) to oppose the recognition of a decision on parental responsibility issued by a court in another Member State ? Which procedure applies in these cases? 16.
17. Which is the applicable law in a proceeding on parental responsibility where the child or the parties do not live in (name of Member State making the fiche) or are of different nationalities? 17.

 

1. What does the legal term “parental responsibility” mean in practical terms? What are the rights and obligations of a holder of parental responsibility?

Parental responsibility is the term used to refer to the responsibility for raising and caring for the child. The parent with parental responsibility has the right and obligation to raise the child. For example, the parent with parental responsibility takes the important decisions in the life of the child, such as where the child lives and which school he/she attends. As the minor gets older, however, the child’s responsibilities and associated authority to take decisions in particular areas will increase, for example when deciding how he/she will spend his/her money, and when signing employment contracts.

The parent with responsibility is the child’s legal representative. In many cases, minor children are not permitted to carry out official actions independently, such as taking legal action or signing passport applications. The person with responsibility will do so for or on behalf of the child.

In principle, the legal representative is also liable for the child’s actions up to his/her sixteenth birthday, for example when he/she causes damage.

The person with responsibility manages the child’s funds and goods, with the exception of pocket money and wages, which the minor is entitled to spend as he/she sees fit.

Both the parent with responsibility and the parent without responsibility are obliged to maintain the child up to three years after the child comes of age at the age of 18, i.e. until the child is 21.

2. As a general rule, who has the parental responsibility over a child?

Since non-parents may also exercise (parental) responsibly over a child, the term ‘custody of a minor’ is preferred. In the Netherlands, all minors are covered by custody. Custody is understood to be parental responsibility or guardianship. Dutch law distinguishes the following terms.

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Parental custody is carried out by two parents jointly or by one parent.

Joint custody is carried out by one parent and one non-parent. Examples include the partner of the parent who cares for and raises the child with the parent. Joint custody may also be exercised by the parent together with the child’s carer (foster parent).

If a person other than the parent(s) exercises responsibility, this is referred to as guardianship.

Guardianship is responsibility exercised by one guardian. A guardian is always a non-parent. Guardianship may also rest with a guardian authority.

Joint guardianship is the responsibility exercised by the guardian and his or her partner. These are two non-parents. It is not possible for a guardian authority to exercise guardianship with another party.

Parents, non-parents

Parents in this context is the term used to refer to the mother and the father in accordance with the law. In every-day language the term parents usually refers to the biological mother and father, although they are not always the parents by law.

The child’s mother is the woman

  • who gave birth to the child;
  • who adopted the child.

The father of the child is in any case:

  • the mother’s spouse, if the mother is married at the time the child is born;
  • the man who has acknowledged or adopted the child
  • the man whose fatherhood has been established in Court

The child’s parents are the mother and father as described above.

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The non-parents are the partners of either parent or guardian(s).

Generally speaking, the following three situations can be distinguished.

Married parents/ registered partners

Basically, parents exercise joint custody over their minor children during the marriage. This takes legal effect (i.e. automatically) when the child is born (Section 1:251, subsection 1 of the Dutch Civil Code). Parents who have entered into a registered partnership, too, will automatically share custody when the child is born, on the condition, however, that the male partner has acknowledged the child (Section 1: 253 aa of the Dutch Civil Code).

Unmarried parents

Unmarried parents may share custody over their minor children. This does not take effect legally: they need to apply for this custody (see question 5).

Unmarried mother

The unmarried mother is legally assigned custody of the child at the child’s birth. This is not the case if the mother is unauthorised to exercise this responsibility at that time, for example when the mother is a minor herself.

3. If the parents are unable or unwilling to exercise parental responsibility over their children, can another person be appointed in their place?

This is possible. There are a number of possibilities.

If both parents, who share custody of the child, are temporarily unable to exercise this responsibility, for example due to departure abroad, or if the residence of the parents with custody is not known, the Court may appoint a (temporary) guardian. This is a third party. Usually, family and friends are approached to establish who is prepared to act as guardian. Another option is that a custody authority is charged with the custody. (Parental) responsibility (custody) is suspended in this case.

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When the custody is exercised by one parent and this parent is temporarily unable to exercise responsibility, for example due to a long-term admission to a psychiatric ward, the Court will charge the other parent with the responsibility. When the Court suspects that the interests of the minor will be seriously neglected by the other parent, it will appoint a guardian (instead of the other parent). Again (parental) responsibility (custody) will be suspended.

If both parents are charged with parental responsibility and one of them dies, the surviving parent will have sole responsibility (custody). This is arranged by law. A Court decision will not be required. If a parent and a non-parent exercise joint custody and the parent dies, the non-parent will retain responsibility in the form of custody.

A guardian may also be appointed if one parent with custody dies. This only happens if the other parent is unable or unwilling to exercise the responsibility, or if it would not be in the child’s interest if the other parent is charged with the responsibility (custody).

If necessary minors can be protected by using certain measures. These include the order for relief of responsibility, and the order for dismissal from responsibility (the person is divested of [parental] custody), both severe measures. Less severe is the supervision order.

A supervision order is a measure that restricts responsibility. The juvenile judge may place a child under the supervision of a family guardian authority. This happens when the child’s interests or his health are seriously compromised. The parents still have responsibility (custody), but are limited in the exercising of that responsibility. In principle, the child will continue to live with the family. The family custody authority will monitor the child and offer support and help to the parents. The family custody authority may issue written instructions to parents and child, who are obliged to follow these instructions.

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An order for relief of responsibility is issued based on the fact that a parent is unsuitable or unable to fulfil his obligation to care for and raise the child. The Court may relieve a parent of the responsibility for (or custody of) one or more children, provided this does not go against the child’s or children’s interest. A relief order may in principle be pronounced only if the parent cooperates (voluntary relief). In some cases a forced relief order is possible, for example when an earlier supervision order has failed.

Dismissal from responsibility (deprivation of custody) for one or more children may be issued based on seriously reprehensible behaviour, such as abuse of responsibility, or serious neglect of the obligation to care for or raise the child. This child protection measure is rarely issued, and only in very serious situations.

4. If the parents divorce or split up, how is the question of parental responsibility determined for the future? (by common agreement or by going to court)

Following a divorce, parents will continue to share custody, if they did so during the marriage. This does not need to be arranged by the Court. This does not mean that they will actually need to look after the child together. Responsibility may be exercised by either parent. However, all key decisions regarding the child must be taken in consultation. Only in exceptional cases will parents not exercise joint parental custody following the divorce. This is up to the Court to decide. The application for assigning responsibility to only one parent (sole custody) may be made by either or by both parents. Following an application to assign responsibility to only one parent (sole custody), the judge will decide which parent will exercise responsibility from then on. If there is more than one child, this is determined for each child separately. It goes without saying that the judge’s decision will depend on the situation. Only if the judge is of the opinion that it is in the best interest of the child, will he allow the application. If the parents (or either one of them) disagree with the Court’s decision, they may appeal. They will need legal assistance both for the Court action and for the appeal.

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Interest of the child

In all cases the judge will base his decision on the child’s best interest. Judges must allow children over the age of 12 to voice their opinion.

Alimony

If parents continue to share custody after their divorce, they should also make financial arrangements. They can ask the Court to lay down these arrangements. If they are unable to sort out this arrangement, the Court may establish the maintenance fee. If one of the parents is assigned sole custody, the Court may be requested to decide how much the other parent must contribute towards the cost of the children. In principle, the parents must arrange for the payment themselves.

For more information about this subject, please go to the Alimony Fact Sheet or the Landelijk Bureau Inning Onderhoudsbijdragen (National Agency Maintenance Fees Collection) (www.lbio.nl)

5. If the parents conclude an agreement on the question of parental responsibility, which formalities must be respected to make the agreement legally binding?

Usually parents have custody at the birth of the child. They are not required to take any action. Unmarried mothers will in any case be assigned responsibility (custody) at the child’s birth (unless the mother is a minor or has been placed under guardianship as a ward of the Court, or under legal restraint). See question 2.

If parents are not married or are not-registered partners, joint parental responsibility will need to be established. The parents can simply apply to the Clerk of the Court to record their wish to exercise joint responsibility of the child in the Guardianship of Minors Register (gezagsregister), a register in which all legal facts related to the responsibility (custody) of minors are recorded. This Register is kept by the Court. For minors born outside the Netherlands or whose place of residence is unknown, these facts are registered in the Guardianship of Minors Register of the Amsterdam Court.

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The application by the two parents must be accompanied by an extract from the Register of Births, which demonstrates, to the Clerk of the Court that the application is made by the mother and the legal father. The Clerk of the Court may refuse to include this record only in specific cases, for example when either parent is unauthorised to exercise responsibility since he or she is a minor.

Applications regarding custody shared by a parent and a non-parent will be decided by the Court upon their request. Please also refer to question 10.

6. If the parents cannot come to an agreement on the issue of parental responsibility, what are the alternative means for solving the conflict without going to court?

Out of Court, the use of a mediator may be considered.

If parents who share custody are unable to agree on matters relating to the child’s care and upbringing, they can submit their dispute to the Court. If the Court fails to bring the parents into line, the judge will decide in the child’s best interest. In his decision he may follow either parent’s wishes, or present his own solution.

7. If the parents go to court, what issues can the judge decide upon relating to the child?

If parents share custody, they may submit any dispute to the Court at the request of either or both parties. This dispute may relate to a wide range of subjects, such as the residence of the child, the school he/she is to attend, parental access, a medical treatment of the child on which parents disagree, the choice of name, the alimony, etc. A minor from the age of 12 will be heard by the Court in all cases save for alimony cases.

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A child may also request the Court to appoint an extraordinary curator if his/her interests conflict with his/her parents’ interests. This curator may mediate and take legal action on behalf of the child.

8. If the court decides that one parent shall have single custody of a child, does this mean that he or she can decide on all matters relating to the child without first consulting the other parent?

The parent with responsibility for (custody of) the child shall be obliged to keep the parent not charged with the responsibility informed of all important issues regarding the person or the assets of the child. The parent without responsibility is therefore entitled to information about the child. The parent without responsibility shall, in certain cases, also be entitled to third-party information about the child.

The parent with responsibility (custody) shall consult the parent without responsibility on all important decisions that relate to the child, such as the choice of school.

If providing information or consulting the parent without responsibility is considered harmful to the child, the Court may relieve the parent with custody of this obligation. Upon request of either parent, the Court may also adopt a scheme regarding the consultation and the provision of information.

9. If the court decides that the parents shall have joint custody of a child, what does this mean in practice?

This means that parents have joint responsibility for raising and caring for the children. Please refer to question 1.

10. To which court or authority should I turn if I want to lodge an application on parental responsibility? Which formalities must be respected and which documents shall I attach to my application?

To which Court would the application be submitted?

The request must be submitted to the Court in whose jurisdiction the person with responsibility for (custody of) the child resides. Please refer to the European legal atlas on this Website for the Court (and the address) authorised for the residence in question. If the child is born outside the Netherlands or the place where the child was born is not known, the parents must submit their request with the Clerk of the Court in Amsterdam.

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What is the application procedure?

Unmarried parents can collect a form ‘to exercise joint custody’ from any Court. Upon completion, they must return this form to the correct Court, accompanied by a number of ‘supporting documents’ (for example to prove the majority (age) of the applicant). The Clerk of the Court will determine if all conditions have been met.

Conditions

The key conditions are:

  • The request must be made by the two parents jointly (both parents must sign the form);
  • The parents are of age. Occasionally mothers older than 16 who look after their child may be declared of age;
  • The father acknowledges the child;
  • The parents are not married to each other and have never been married to each other;
  • Both parents are authorised to exercise responsibility.

Which papers must you bring?

The form must be accompanied by:

  • a copy of the child’s birth certificate;
  • a valid proof of identity for both parents;
  • a deed of acknowledgement;
  • an extract from the municipal basic administration of the parents (this relates to the details regarding the address and place of residence).

The Court will decide on issues involving joint responsibility (custody) of a parent together with a person other than a parent (i.e. with a non-parent). The legal decision is obtained at the joint request of the parent who has sole responsibility (custody) and the non-parent, for example by the mother who has sole responsibility following a divorce and her new boyfriend. For the proceedings they will need to appoint a lawyer. The joint custody shall be awarded and take effect on the day that the decision of the Court becomes final and conclusive.

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Conditions

The main conditions are:

  • The parent has sole responsibility (custody) at the time the application is made;
  • The partner (e.g. the mother’s new boyfriend) has a close, personal relationship with the child;
  • The interests of the child are not compromised.

Amendment of parental responsibility

The Court shall decide on the responsibility (custody). There is a preference for the father and mother sharing joint custody. However, if this leads to such conflicts that this is harmful to the child, the responsibility may be amended at the request of either or both parents in the sense that only one parent is charged with the responsibility (sole custody). This request must be submitted to the Court; the applicant party will need a lawyer if the case relates to an amendment of responsibility following a divorce. If people have never been married, this application may be made without appointing a lawyer.

The parent not charged with the responsibility may submit a request with the Court at a later date, if circumstances have changed, to charge him/her with the responsibility (custody) instead of the other parent.

11. Which procedure applies in these cases? Is an emergency procedure available?

Dutch law prescribes a petition procedure for these cases.

In urgent cases a so-called provisional relief shall be possible, pronounced by the Court’s judge.

12. Can I obtain legal aid to cover the costs of the procedure?

Yes, depending on the income.

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13. Is it possible to appeal against a decision on parental responsibility?

Yes, this is possible at the Court of Appeal. There are scattered in the Netherlands 5 Courts of Appeal.

14. In certain cases, it may be necessary to apply to a court or another authority to have a decision on parental responsibility enforced. Which procedure applies in such cases?

The decision of the Court regarding responsibility (custody) is sufficient to ‘enforce responsibility’, i.e. to request the police to return the child.

15. What should I do to have a decision on parental responsibility that is issued by a court in another Member State recognised and enforced in [name of Member State concerned]? Which procedure applies in these cases?

In the Netherlands a so-called grant of execution (declaration of enforceability) must be obtained from the judge in Court.

16. To which court should I turn in ( Member State making the fiche) to oppose the recognition of a decision on parental responsibility issued by a court in another Member State ? Which procedure applies in these cases?

Appeals against a decision rendered in an EC member state may be lodged only with the Court in the country where the decision was rendered.

A new decision may be obtained in the Netherlands if it has authority under the Brussels II Regulation, the Hague Child Protection Treaty 1961 (Bulletin of Treaties 1968, 62) or, when none of these instruments apply, section 4 of the Civil Action Code. These regulations are based on the principle that authority falls to the Courts in the country where the child normally resides. If responsibility (custody) and parental access are issues in divorce proceedings, the divorce judge may, in certain circumstances, also be authorised to decide on these associated requests.

17. Which is the applicable law in a proceeding on parental responsibility where the child or the parties do not live in (name of Member State making the fiche) or are of different nationalities?

When the child has its ordinary residence in the Netherlands, the Dutch Court shall in principle apply Dutch law, also if the child does not have Dutch nationality or when the child’s parents live abroad.

When the child does not have its ordinary residence in the Netherlands, the Dutch Court shall declare itself unauthorised to pass judgment. Some exceptions may be made, for example in cases that involve a Dutch child about to move to the Netherlands. When the Court deems it in the best interest of the child, it will decide on matters of responsibility (custody) subject to Dutch law.

« Parental responsibility - General information | Netherlands - General information »

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Last update: 15-02-2005

 
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