Moving home after divorce: with or without the children?

Especially when moving home after divorce. In our practice we get asked with some regularity whether a divorced parent can move (abroad) with the children without first obtaining permission from the other parent of the children. The answer to this question depends greatly on the facts and circumstances of the case.

Practice

In practice, it is not uncommon for the main carer to find a new partner. Someone who lives elsewhere in the country or even abroad, several years after divorcing – or even during the divorce proceedings. It is also known that foreigners who reside in the Netherlands temporarily or permanently (e.g. expats), want to move back home after a divorce or want to be re-assigned elsewhere, either in the Netherlands or abroad. There are numerous reasons for moving or emigrating. Former spouses then face the question as to whether the main carer can simply decide to up sticks and move with their child to another town or city, or abroad, against the wishes of the parent left behind.

Consent

The answer to this question is NO. If the parent who is not moving has parental authority of the children, he or she will have to give his or her consent. This consent does not only apply to moving with children abroad, but also to moving with children in the Netherlands. If this consent is not given, the other parent can ask a court to give substitute consent. If a parent flouts this requirement, and moves abroad or within the Netherlands, without consent of the court or the other parent, this will be considered child abduction – which is a criminal offence.  A parent may not move abroad with the children even within the Netherlands without consent.

Weighing of interests

A parent who wants to move (abroad) with the children can ask the court for substitute permission. The judge will then make a balancing of interests. Whilst the children’s interests are paramount, there are other relevant interests to consider such as:

• the main carer’s right to and interest in relocating during and/or after the divorce proceeding. Considering his or her freedom to start a new life,
• the necessity of the move (abroad) with the children,
• how well thought-out and well-prepared the move (abroad) with the children is,
• what alternatives and measures are offered by the primary carer to mitigate and/or compensate for the consequences of the move (abroad). Both for the children and for the other parent,
• the sharing of the care duties and the continuity of care,
• whether the rights of the parent who is left behind and the children have been taken into account. So that they are able to maintain unhindered contact with each other in their familiar environment,
• if the frequency of contact between the children and the parent left behind have been discussed. Prior to and following the move (abroad),
• the age of the children, their opinion, and how settled they are in their environment or whether they are accustomed to moving (abroad),
• the (additional) costs of contact as a result of the move (abroad), and
• how able the parties are to communicate with and consult each other.

Different factors

Where an ‘expat family’ has come to the Netherlands with the aim of taking up temporary residence in this country, any move of this nature is viewed differently than if it were a matter without international dimensions. So there are many different factors that can affect whether the main carer will obtain substitute consent from a court to move abroad and/or home after the divorce. Each case is judged on its own merits.

If you have any questions about your personal situation after reading this blog, please do not hesitate to contact me.