29 January 2024

Child maintenance: the legal father vs the biological father

By Dylan Bertsch

In some cases, the legal father may not be the biological father. Under Dutch law, the legal father is responsible for paying child maintenance.

However, the Arnhem-Leeuwarden Court of Appeal recently ruled that this may be derogated from. It is also stipulated that the biological father should pay child maintenance. I will elaborate on this ruling in this weblog.

What does legal paternity entail?

A legal father is: a) the mother’s spouse or registered partner at the time a child is born, b) the man who acknowledges or adopts a child, or c) the man whose paternity is established by a court.

What does biological paternity entail?

Quite simply, the biological father is the man who provided the genetic material, the DNA, from which the mother’s pregnancy originated.

Which father is responsible for child maintenance?

Dutch law stipulates that the legal father is responsible for child maintenance. However, as mentioned, the Arnhem-Leeuwarden Court of Appeal recently ruled otherwise, and in my opinion rightly so. What was the issue?

The legal father in this case had become a legal father in 2009, as the child was born within 300 days of the divorce between the legal father and the mother. However, the mother had been in a relationship with the child’s biological father since 2008. The biological father and the mother then had a second child, for whom the biological father is the legal father. The biological father and the mother married at some point and were then a family for a long time. Therefore, a family with two children, where the biological father is only the legal father of the second child.

What did the Gelderland court decide?

In 2021, this couple separated and filed for divorce with the Gelderland District Court. In the process, the mother requested that child maintenance be paid for both children by the biological father. The Gelderland court then decided that it was impossible to determine child maintenance for the first child because the biological father was not the legal father. After all, the legal father is the man to whom the woman was first married because the child was born within 300 days of the divorce between the legal father and the mother.

The Arnhem-Leeuwarden Court of Appeal decided otherwise

The legal father has never seen the child. Moreover, the biological father formed a family with the mother and their second child for many years and the child was raised by the biological father. In addition, the biological father indicated during the proceedings in the Gelderland court that he wanted to pay child maintenance for both children. Based on Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Europees Verdrag tot bescherming van de Rechten van de Mens en de fundamentele vrijheden), the Arnhem-Leeuwarden Court of Appeal therefore ruled that in this case there is room to override the legal system: the biological father should pay child maintenance for the first child and not the legal father.

In conclusion

If you have any questions about child maintenance, please do not hesitate to contact me via d.bertsch@gmw.nl or 070 3615048.

Dylan Bertsch

Dylan Bertsch

Lawyer and mediator

Dylan Bertsch specializes in family law and is a committed and passionate lawyer and mediator.

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