18 September 2023
As a divorce lawyer, I regularly receive questions from expats during or after their divorce about their desire to move back to their country of origin together with their children.
Do both parents have custody of the children? Then the parent who wants to relocate to another country with their children needs the other parent’s consent. This is because moving abroad affects the contact between the children and the parent left behind. As an expat, do you need substitute consent to relocate back to your country of origin with your children?
For many expats, this leads to awkward situations. While it may be easy for parents to make joint decisions about where they will live during their relationship, this is often more difficult after they separate. It is quite common that one of the parents would like to live in their country of origin with their children, near friends and family.
What happens if the other parent does not consent to the relocation? In that case, the parent wishing to move can apply to the court for substitute consent for the relocation. In this blog, I discuss the format of such court proceedings. I will also specifically address obtaining the substitute consent below.
The court assesses an application for substitute consent to move abroad with the children under Article 1:253a(1) of the Dutch Civil Code (Burgerlijk Wetboek). This stipulates that where custody is exercised jointly, disputes on this matter can be submitted to the court at the request of both parents or one of the parents. The court will make such a decision as it deems appropriate in the best interests of the child. In doing so, it will take all relevant facts and circumstances of the case into account in accordance with established case law. In a 2008 ruling, the Supreme Court (25 April 2008, ECLI:NL:HR:2008:BC5901) defined the criteria against which a request for substitute consent to relocate should be assessed by the courts:
The importance attached to the different criteria depends on the circumstances of the case. In practice, however, the court’s decision on whether or not to grant consent for the relocation often comes down to the relocating parent’s desire, right and interest to move and the freedom to rearrange his/her life as well as the need to relocate. The court also attaches major importance to the impact the move will have on the other parent’s contact with the children. In many cases, the court rules that the interest of continuing frequent and unchanged contact between the parent and the children outweighs the desire and interest of the other parent to relocate. The request for substitute consent for relocating with the children is then rejected.
Case law, however, seems to provide various options for specific situations where an expat wants to relocate back to his/her country of origin with the children from the Netherlands. In a ruling by the Amsterdam Court of Appeal (5 July 2022, ECLI:NL:GHAMS:2022:1989), both parents were from Brazil. They had moved to the Netherlands as a family four years earlier. By now, the parties had separated and the mother wanted to move back to Brazil with the children. In this case, both the district court and the court of appeal granted the mother consent to relocate back to Brazil with the children.
In the ruling, the court addressed the importance of frequent contact between the father remaining behind and the children. Nevertheless, the court ruled that the mother’s interest in moving back to Brazil where she had work, housing and a network – unlike in the Netherlands – outweighed the interest of frequent contact between the children and the father who remained behind, despite the considerable distance between Brazil and the Netherlands. The court also took into account the fact that continuing to live in the Netherlands has an impact on the mother’s state of mind, which will affect the children.
The court also explicitly considers it important that the parties are expats in the Netherlands: they are highly educated and had good jobs in Brazil. The court ruled that contact between the father remaining behind and the children could be compensated for during the holidays and considered it significant that the father had another son from a previous relationship elsewhere in Brazil, so that he could be expected to travel to Brazil from time to time to visit his family and his children.
Obtaining substitute consent from the court to move abroad with the children remains difficult. It is in the children’s interest to have frequent contact with both parents. The court’s ruling discussed above appears to offer expats, who are generally living in the Netherlands temporarily and want to move back to their country of origin with the children, an opportunity to nevertheless obtain substitute consent. If you have any questions, please do not hesitate to contact me.
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As a divorce lawyer, I regularly receive questions from expats during or after their divorce about their desire to move back to their country of origin together with their children.Read more
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