Custody & guardianship

There is an important distinction between custody and guardianship. The term guardianship is often used when the correct term should be custody.

Establishing guardianship

Guardianship can only be established in two ways:

  1. if the parent has appointed a guardian before their death (known as a testamentary guardian), or
  2. if a guardian is appointed by the court.

Parents have custody of their children, never guardianship.

When does custody apply?

If a child is born in a marriage, both parents have custody. After a divorce, this joint custody normally continues and in principle the parents agree on a care and contact arrangement, drawn up in a parental plan.

In the case that the parents of the child are not married and the father has not acknowledged the child, the father does not (automatically) have custody of the child. He can apply for custody together with the mother. In that case he has the rights and obligations which accompany the custody. If the mother refuses this, the father can request the court to give him custody as well.

See also: Registered partnerships – the pros and cons

When should an arrangement for access be made?

If the two parents do not both have custody of a child, a care and (international) access arrangement can be made. Even if there is no custody, it does not mean that a parent does not have any right to the child. A request for access can also be made if the father has not acknowledged the child.

Help with custody issues

In many cases problems arise with regard to the arrangements about access or the care and contact arrangement. GMW lawyers can help you find a good solutions for these problems. View our contact details here.

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