27 January 2025
Moving is a significant event, especially when children are involved. It becomes even more complex when parents are separated and share joint parental authority.
Under Dutch law, moving abroad or even to a different municipality within the Netherlands requires the agreement of both parents with parental authority. After all, continuing to share care for the children becomes challenging when one parent moves far away with them. But what happens if a parent relocates without consent?
When parents share parental authority, both parents’ consent is required for a move. If the other parent refuses, the relocating parent can apply for substitute consent from the court. However, this process can be time-consuming, and the outcome is uncertain.
The non-moving parent can initiate legal proceedings to prevent the move or even request a court order for the parent and children to return. In these cases, the court considers various factors, such as the child’s best interests, the reason for the move, and the non-moving parent’s involvement in the child’s life.
If the non-moving parent does not have parental authority, the situation becomes more complex. While this parent cannot directly request a return order, they still have rights, such as the right of access and contact with the child. The parent with sole parental authority must support the child’s relationship with the other parent.
In a 2008 ruling, the Dutch Supreme Court (April 25, 2008, ECLI:NL:HR:2008:BC5901) determined the criteria by which the courts can assess whether a move with the children can be granted::
The court may apply these criteria when assessing a request from a relocating parent or when the non-moving parent seeks to prohibit or reverse a relocation. Other factors may also play a role, as each relocation must consider all relevant circumstances.
The requirement for mutual consent in relocation cases primarily applies when both parents share parental authority. However, recent years have seen cases where even a parent with sole parental authority cannot relocate with children without consequences.
In a Dutch Supreme Court ruling from October 15, 2021 (ECLI:NL:HR:2021:1513), the court held that a parent with sole parental authority could be ordered to return with the children, even if the other parent did not have parental authority at the time of the move. The parent with sole parental authority has a duty to facilitate the child(ren)’s relationship with the other parent. If this duty is not fulfilled, the court can take action. While the legal basis for a return order differs from cases of shared parental authority, the outcome may still prevent or reverse the relocation.
In a more recent case from the Arnhem-Leeuwarden Court of Appeal (May 14, 2024, ECLI:NL:GHARL:2024:3291), the court emphasized that the relocation criteria in case law are not exhaustive. Additionally, not all criteria need to be considered in every case. Depending on the circumstances, the court determines which factors are relevant. In this case, the woman relocated with the child for their physical safety. When the need for a move concerns the safety of the parent and child, this factor becomes decisive, according to the court.
This article provides an overview of the legal aspects surrounding relocating with children without the consent of the other parent (with parental authority). It is important to note that every situation is unique and requires specific legal advice.
Do you have relocation plans, or has the other parent of your child(ren) moved away? Feel free to contact me for advice tailored to your situation.
