12 February 2020
In my practice, clients regularly ask me about the joint authority of parents.
In this blog, I have listed the 6 most frequently asked questions on this topic and the answers. If your question is not listed, please contact me.
Immediately after birth, the mother from whom the child is born automatically has parental authority over the child. This authority allows the mother, among other things, to make decisions about the upbringing and care of the child. The mother may also manage the child’s property and legal acts may be performed by her in the name of the child. The father only automatically has authority over the child without having to take any action if he is married to the child’s mother or if he is a registered partner of the child’s mother.
Once the (biological) father recognises the child, there is a legal bond between the parent and the child. This is called the family relationship. The father is then also required to support the child financially. The child will also be able to inherit from the father.
If the child is not born within a marriage or registered partnership, the father does not yet have parental authority. He is then still not a legal representative of the child. Only after the father has parental authority can he take joint decisions about the upbringing and care of the child. Recognition can already be registered with the municipality during pregnancy. Parental authority can only be requested after the birth of the child.
It is not self-evident that the parents have joint authority of their child. When the parents are married and the child is born within the marriage, both parents are legally entitled to authority. This is also the case if it is known or it becomes clear afterwards that the father is (still) not the biological father of the child. This can sometimes lead to special situations.
To date, the rule is that parents who are married or have a registered partnership and who have a child during this marriage / registered partnership automatically have joint authority. This does not include a (lasting) relationship.
A legislative proposal was submitted by the House of Representatives of the Netherlands in 2016 that should also lead to parents who have a relationship with each other (non-married or registered partner) automatically having joint authority after the child has been recognised. The Council of State published a recommendation on 16 January 2020. The aim is to have the bill come into effect as soon as possible. It is not yet known when this will be the case.
When a child is born during a marriage, both parents automatically receive joint authority. If a child is born during a relationship of the parents, then only the mother has legal authority. The authority of the other parent, after the recognition has taken place, can be digitally regulated via the website of the judiciary. This requires the permission of the mother who has authority. If the mother does not give permission, substitute permission may be requested from the court.
Registering joint authority is relatively easy. However, joint authority, whether or not legally obtained, is not easy to change. If one parent no longer wishes to have authority of the child, for example in the case where it appears that one parent is not the child’s biological parent, then a procedure must be conducted in court (a lawyer is required for this). A lawyer can submit a petition to the court to end the joint authority.
This weblog was written in close collaboration with Bianca Kok-Beekhuizen, legal assistant in the family and inheritance law section.
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