Moving after the divorce, what about the children?
After the break up of a relationship or marriage, a minor will in most cases live with one of their parents. In fact, in The Netherlands, a child can only be legally registered at one address.
If the parent, with whom the child is living, wants to move with the child to another city or country further away this will have a negative impact on visitation and custody arrangements for the child. Therefore, if the parents have joint custody of the child, the parent moving will have to ask permission from the other parent for the move.
If the parents fail to reach agreement, the parent that wishes to move, can request the courts to grant him / her permission for the move. A judge will then decide what is in the best interests of the child.
Jurisprudence
Courts rule on requests from parents to move with a minor on a regular basis. Based on this jurisprudence, we can assess which factors play a role in the deciding whether a parent may move or not.
A Dutch Supreme Court ruling from 2008 is exemplary. In the case in question, the mother asked the court to grant her permission to move to Switzerland with her two children from her first marriage. The primary court and the appeal court both rejected the request because the move was not considered to be in the interest of the children, as they would then be living so far away from their father in The Netherlands.
The Supreme Court had previously determined that the interests of the children are of the first order, but these are not the only interests a court must take into account when assessing a move. The interests of the parent that wishes to move should also be considered.
In this case, mother was remarried to a man who lived and worked abroad. The mother, however, remained in the Netherlands and was awaiting permission from the court to move. Moreover, the mother was pregnant with her new husband’s child. Ultimately, therefore, the mother was granted permission to move with her children. The mother's interests in this case outweighed the interests of the father (and maybe the kids).
In case of both domestic and international moves a judge will weigh all the circumstances of the matter. This may lead to some surprising outcomes as in each case the outcome can be different.
What factors are important?
If a parent wishes to move together with the child and the other parent does not agree with the relocation of the child the following circumstances are important:
- Freedom for a parent to rebuild his / her life;
- The reasons and need for the move;
- Proper preparation of the move, for example does the parent moving have sufficient funds to support the family, have another job lined up and suitable accommodation?;
- The extra cost of visitation for the other parent after moving;
- What real opportunities for involvement in the children’s lives will there be after the move;
- The stability of a new relationship of the relocating parent; in a fledgling relationship, the parent will generally not be granted permission to uproot their family;
- The extent to which parents are able to consult with each other and work together to ensure visitation and continued involvement of both parents in the children’s lives;
- The fact that a parent indicates that they will not move if the court does not grant consent and awaits the outcome before taking steps that are irreversable.
However, as mentioned above, each case is different and may have a different outcome. If parties have concluded a parenting plan upon divorce in which they agreed not to move far away in the interests of the children, do not be surprised if the court holds them to that agreement. An agreement is legally binding after all.
Two cases from our own practice:
A move within the Netherlands
Our client was the separated mother of two children, one of which was handicapped. She wished to move with her family to a new house in the country that was more suitable to her handicapped child’s needs. However, the new house was over 50 km away from her original home nearby the father. The father, who had joint custody, repeatedly refused permission for the move citing difficulties in continuing visitation because of the distance.
We applied on behalf of the mother to the court for permission for the move and this was granted based on the circumstance that although the move did impose more travel time on the family, as the mother had offered to take responsibility for half of the travel time, on balance the interest of the family and mainly the handicapped child outweighed the extra imposition of distance between both parents.
A move outside of the Netherlands
Our client was the father of a child with a woman from the UK. They had separated, but the mother remained in The Netherlands, and they had for several years taken joint care of their child. However, our client did not have joint custody of the child. The mother suddenly announced that she would be moving back to the UK with their son.
We initiated injunction proceedings to prevent the move. The fact that the father did not have joint custody meant that the case was extremely difficult, as in law the mother was in principle free to decide where she and the child lived. The court in the end refused the injunction, but after proceedings parties were able to agree on another solution. The mother returned to the UK and the son remained with his father in the Netherlands.
What you should never do
What you should not do is move with the children and present the other parent with a fait accompli. In many cases this leads to an obligation to return them to their old hometown. If transferring children abroad without permission, that is deemed as child abduction!
How can Bowmer Nuiten Noteboom help you?
Ideally both parents with joint custody should agree on where the child will live or move to. If you cannot come to an agreement, the relocating parent must request the court to grant him / her permission to move. And, as above, the other parent can apply for an injunction forbidding a move, at least until the court has made a definite decision
Do you have a dispute with your ex-partner regarding a move? Then contact our family law specialists.
If you have any questions about this article or wish to make an appointment, please feel free to contact Maria Bowmer or Emma Davidson.
