Child custody and visitation in the Netherlands
In the following article, please find some general answers to some frequently asked questions regarding child custody and visitation after separation or divorce in The Netherlands
Who has custody?
Parents that are married or in a civil partnership automatically have joint custody of all children born of the marriage and/ or civil partnership. Upon marriage, joint custody is also gained of children born before their parents’ marriage.
If the parents are not married, then only the mother has immediate custody of any children born during the relationship.
What effect does divorce have on custody?
In principal: none. Both parents remain legal custodians of the children after divorce. Only if it is in the best interest of the child, will one parent be granted single custody. If the child is at risk of becoming trapped between their parents, due to their not being able to agree or communicate, and there is no improvement to be expected in the future, then the courts may decide to grant single custody.
The courts do not usually award single custody unless there are exceptional circumstances. For example, when one parent constantly refuses to cooperate with the other in the interest of the child or deliberately sabotages visitation by the other. Another example is when one parent has been convicted of a violent criminal act.
What does custody entail?
Custody means that both parents can decide on (legal) matters regarding the children, such as school, financial matters, medical issues etc. It is assumed that both parents are in agreement if one parent exercises their rights as custodian, unless the parent explicitly protests. If parties cannot agree, then the family courts can be applied to, to make a decision.
Joint custody does not equal co-parenting or equal visitation rights.
How do I obtain custody?
If custody is not automatically granted because you are not married to the mother of your child, then you can apply for joint custody to the courts. If the mother agrees to you becoming a custodian, then all you need to do is fill in a special form together, which is available here, and submit it to the court of the place of birth of your child. The court then registers your custody in the public custody register.
Please note that legally acknowledging your child at birth does not create joint custody in The Netherlands. You must register the mothers assent to joint custody with the courts aswell to obtain custody!
If the mother does not agree to sign the custody form, then you must apply to the courts for an order granting joint custody. The courts will then examine if it is in the best interests of the child to grant joint custody.
Do I need custody to visit my child?
No, custody and visitation are two separate issues under Dutch law. If you have ‘family life’ with your child, then you have a right and even an obligation to visitation. Family life can also entail that non-biological parents have rights to visit ‘their’ children after divorce. If there is a close familial bond, then the reasoning is that it is in the best interest of the child to continue to have contact with that ‘parent’. There must at least be regular contact.
This rule has also been used successfully to obtain visitation rights for grandparents after divorce has separated them from their grandchildren.
What do visitation rights entail?
The right to visitation not only entails actual visits, but also the right to send e-mails, speak to them on the telephone and receive relevant information about them from the other parent.
How do visitation rights come about?
In most cases, parents are now obliged to draw up a parenting plan before they divorce. The parenting plan is a compulsory part of the divorce petition. The thinking behind this is that it forces parents to think about the future care of the children at an early stage. The parenting plan must address where the children will live in the future, what financial measures will be taken and what visitation arrangements will be made.
Is there a minimum or maximum amount of time I can spend with the children?
If parties agree amicably, then many variations are possible. In court, there is also no legal minimum or maximum. The courts will take into account factors such as the respective roles of parents during marriage, the amount of work hours a week, how far away from each other the parents are now living and the capacity to give the children a stable home.
So, in many cases, the children will live with their mother and the father will have visitation rights at weekends and holidays. One weekend per two weeks and half the holidays is still a fairly common arrangement. However, if the father took one day a week off to care for the children during the marriage, then the courts will most likely also award that day to the father, as this is a stable situation the children are used to.
Do the children get a say in visitation arrangements?
Children over 12 years of age are asked for their opinion on proposed arrangements by the courts. Their opinion is, however, not binding, though the courts will in most cases try and take the child’s opinion into account.
What if the visitation arrangement we made isn’t working?
In that case you can either agree a new arrangement amicably or apply to the courts for a revision of the parenting plan or visitation rights. Examples are that one parent constantly refuses to drop the children off at the right time or moves further away. It may also be that a change of school or a new sporting activities means a new schedule for the children which needs to be taken into account. If communication is good between the parents, then court will not be necessary, but if not then the courts will have to decide. There is a special procedure for deciding on issues regarding custody and visitation. The courts strive for a hearing within six weeks of a petition in order to decide matters quickly.
If you make new arrangements yourselves, make sure that the new arrangement is confirmed in writing.
My ex-partner won’t let me go on holiday with the children. What can I do?
If you have joint custody, then the other parent must give permission for foreign holidays. Otherwise, taking the children out of the country can be construed as abduction. It is therefore important to ask for permission from the other parent. If they refuse without good reason, then injunction proceedings can be brought to ask for consent in lieu of the other parent. As even injunction proceedings take some time to prepare it is wise to ask for permission at an early stage and not wait until the eve of your holiday.
How can Bowmer & Nuiten Help you?
Our team of experienced Family lawyers is happy to advise on custody and visitation, whether during divorce or after. We regularly help international clients understand and navigate Dutch law. Our lawyers can also draw up parenting plans and agreements for you in Dutch, English or German.
As children are involved, it is not ideal that their parents are engaged in protracted legal battles. We therefore also offer an alternative method of dispute resolution via mediation. Mediation helps parties to come to an agreement that is usually a definite answer to any dispute. Mediation also helps parties to refocus their energies on what is best for the children.
For more information or queries about custody or visitation, please contact Maria Bowmer.
You can also consult our partner website Dutch Divorce Lawyer for more information on divorce and custody of children in The Netherlands.
