In August 2018, the Rotterdam District Court issued an interesting judgment that I wish to share with you. It regards a case about a 10-year-old boy playing at Sparta Rotterdam. Before the divorce, the parents lived with their son and their 2-year-old daughter in Capelle aan den IJssel, not far from Rotterdam.
Since their divorce, the parents have exercised joint custody of the two children. This means that if important decisions have to be made with regard to the children, such as the choice of school or a medical intervention, both parents must give permission. If the parents cannot reach a joint decision, substitute permission may be requested from the court.
From Sparta to Ajax
The boy was invited to come and play at AFC Ajax. For the mother, that was sufficient reason to want to move to Amsterdam. However, the father did not agree with that. The story does not explain why, but it could well be that the father lived somewhere near Rotterdam and feared that contact with his children would diminish in the event of a possible move. In any case, the parents did not agree. The mother therefore submitted a request to the court for replacement permission for a move with the children to Amsterdam.
Substitute permission by the court
A number of criteria have been developed in case law, in particular in the so-called “Swiss case”, which must be considered if the court has to decide on a relocation request. In fact, it is stipulated that the court must take into account all the circumstances of the case in its decision. Of course the best interests of the child play a major role, but other interests must certainly also be considered. In Article 1: 253a of the Dutch Civil Code, the law stipulates that the court must make such a decision if it appears desirable in the best interests of the child.
The criteria that play a role in deciding on a relocation request are:
- The need to relocate.
- The extent to which the move has been thought through and prepared.
- The alternatives and measures offered by the relocating parent to compensate for the impact of the relocation on the child and the other parent.
- The extent to which the parents are capable of mutual communication and consultation.
- The rights of the other parent and the child to remain in full contact with each other in their familiar environment.
- The distribution of care tasks and the continuity of care.
- The frequency of contact between the child and the other parent before and after the move.
- The age of the child, his opinion and the extent to which the child is rooted in its environment or is used to extra relocations.
- The costs of handling after the move.
Need to relocate?
In this case, the mother’s request did not fully measure up to even the first criterion, because the boy’s switch from Sparta to Ajax was mentioned by the mother as the only reason for the intended relocation.
In addition, the following points in this case were also relevant:
- The father was willing to share the fetching and bringing of the boy from Capelle to Amsterdam with the mother.
- Friends from the neighbourhood also travel back and forth, which meant that driving could be shared, for example with the parents.
- Ajax was willing to arrange a taxi for the boy.
The need for relocation was therefore not established and, on that basis, the court rejected the mother’s request. The court also considered the erratic nature of the football world and that the boy may well have to change clubs a few times. The court advised the parents to enter into discussions with each other in order to make agreements about their children.
Do you have questions about your rights and obligations as a divorced parent with children? Please contact me at your convenience.