22 September 2020
Earlier this year, my colleague Susan Meijler answered the six most frequently asked questions about joint parental authority.
In this article, she paid highlighted the question of how to obtain parental authority in the Netherlands. In our international practice, we regularly receive questions about cross-border issues related to parental authority or guardianship. In this article, I will discuss the differences between the Dutch terms and the terms that are frequently used abroad. I also discuss what a move to the Netherlands or abroad means for the acquired authority or guardianship.
If you have parental authority, you are responsible for the care and education of your child. With that parental authority, you may, among other things, manage the assets of your child and perform legal acts, as well as make decisions about medical treatment, school choices and relocations.
The mother from whom the child is born automatically (“by operation of law”) has parental authority over the child. The father or co-mother obtains this right automatically if he or she is married to or has a registered partnership with the birth mother. For a co-mother, the (known) donor may not have already recognised the child.
If a child is born out of wedlock or a registered partnership, joint parental authority can be applied for at the court. The co-mother or father must have recognised the child (this is done at the municipality), for example when registering the birth of the child.
If parents separate and they have joint parental authority, in principle both parents retain joint authority.
If someone other than the parents has parental authority over the child(ren), then there is guardianship.
In practice, misunderstandings regularly arise about the translation of the concepts of authority and guardianship into English. In the Netherlands, all minor children are under parental authority / responsibility (gezag) or guardianship (voogdij). Parental authority exists when the parents are responsible for the care and upbringing. Guardianship applies if someone other than the parent (s) exercises authority.
The term custody is frequently used abroad. Custody has many similarities with “authority”, but the meaning is not completely the same, which makes it unclear in practice. Abroad, a distinction is made between legal custody and physical custody. Legal custody means that a parent is allowed to make all-important decisions about the child, such as choice of school, medical treatment and religion. Physical custody means that a parent has the right to house, care for, and raise the child and to make day-to-day decisions regarding the child. In the Netherlands, this distinction is not made and we do not know these ‘stripped down’ forms of authority. A comparison is therefore difficult to make.
Each country has its own rules for obtaining parental authority. If you have obtained parental authority abroad by operation of law, but you did not have a registered partnership / marriage with the mother, you will retain parental authority when you move to the Netherlands. If you have not obtained parental authority abroad, but you would have parental authority in the Netherlands by operation of law, then you will acquire parental authority when you move to the Netherlands. This is stipulated in the 1996 Hague Child Protection Convention.
Please note: if guardianship or parental authority has been established by a foreign judicial decision, a decision will not always be recognised by law by the Netherlands. It is important here whether the Netherlands has a treaty with the country in question. If the Netherlands does not have a treaty with the country in question, you may have to submit a new application to the court in the Netherlands.
If you have legally obtained parental responsibility in the Netherlands and you move abroad, then in principle you will retain authority if the country is a party to the 1996 Hague Child Protection Convention. However, each country has its own rules and exceptions in this area and it is therefore advisable to seek legal advice in this area when moving abroad.
If you have a question about this subject, please do not hesitate to contact me.
