I get asked with some regularity whether a divorced parent can move home with a child without first obtaining permission from the other parent of that child. The answer to this question depends greatly on the facts and circumstances of the case.
In practice, it is not uncommon for the main carer to find a new partner who lives elsewhere in the country, or even abroad, several years after divorcing – or even during the divorce proceedings. Foreign nationals, who are temporarily or permanently resident in the Netherlands (expats, for example), have also been known to want to return to their country of birth or 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 another country, against the wishes of the parent left behind.
The answer to this question is NO. If the parent who is not moving has custody of the children, he/she will have to give his/her consent. 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 away from the Netherlands, without consent of the court or the other parent, this will be considered as child abduction – which is a criminal offence. A parent may not relocate even within the Netherlands without consent.
Weighing of interests
There will have to be a weighing of interests. Whilst the child’s interests are paramount, there are other relevant interests to consider such as:
- the main carer’s right to and interest in relocating, and his or her freedom to start a new life,
- the necessity for the relocation,
- how well thought-out and well-prepared the relocation is,
- the alternatives offered by the main carer and measures to mitigate and/or compensate for the consequences of the relocation for the children and the other parent,
- the sharing of the care duties and the continuity of care,
- the rights of the parent who is left behind and the children to undiminished contact with each other in their familiar environment,
- the frequency of contact between the children and the parent left behind prior to and following the relocation,
- the age of the children, their opinion, and how settled they are in their environment or whether they are accustomed to relocating,
- the (additional) costs of contact as a result of the relocation, and
- how able the parties are to communicate with and consult each other.
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 home. Each case is judged on its own merits.
If you are dealing with relocation issues, or you know somebody who is, don’t hesitate to get in touch with me. Together, we can work out an acceptable solution.