27 February 2024
It must be stated first and foremost that not only the legal parents of a child have the right of access to the child.
Based on Dutch law, and in particular Article 1:377a(1) of the Dutch Civil Code (Burgerlijk Wetboek), persons who have a close personal relationship with a child can also apply to the court with a request to establish a visitation arrangement.
The mere fact that the donor is the biological father of the child does not mean that the donor is automatically entitled to contact with the child and that they have a ‘close personal relationship’. If a donor wants contact with the child, they will have to establish additional circumstances showing a close personal relationship.
According to established case law, these additional circumstances must be due either to the nature of the relationship with the mother or mothers and the donor’s involvement with the child before and after birth. Or must be due to the bond that developed between the donor and the child after birth.
In a ruling by the Midden-Nederland District Court (ECLI:NL:RBMNE:2019:2992), the court concluded that it had become sufficiently plausible that such a close personal relationship existed between the donor and the child. According to the court, it appeared from the documents that it was the intention of the parties (the two mothers and the donor) to give the donor a role in the child’s life.
In addition, the parties had drafted a donor agreement that included that contact would take place between the donor and the child at least once a year. And, furthermore, that further opportunities for contact could be established by the parties on an informal basis. It was then established that the donor saw the child once every six to eight weeks during the first year of life and that twenty-four opportunities for contact had occurred between the donor and the child in the year prior to the hearing.
Very recently, on 20 July 2023 (ECLI:NL:RMBNE:2023:3750), the Midden-Nederland District Court ruled that there was a close personal relationship between the donor and the child because they had had contact for three hours at least once every two months.
The question that then arises is how visitation arrangements between a donor and a child should be structured. Again, this depends on the circumstances of the case.
If you are a donor and wish to have access to the child, or are the mother of a child with a donor father, please do not hesitate to contact me for further advice.
