Spending a holiday with Your child:
common rules?
Every family law attorney encounters it in their practice at the beginning of summer vacation. Arguments between divorced parents over a proposed trip by the other parent with the children. Do you have joint custody of your minor children? Then that permission is required in any case. The other parent can express his or her consent by completing and signing a form, which can be downloaded from the website of the Central Government. In addition, it is wise to bring other documents such as the child's birth certificate, an excerpt from the municipal personal records database, a copy of the other parent's passport, the return ticket and a copy of the parenting plan. Also consider translations of these documents! Especially when taking a plane trip to a destination outside the Schengen area, it is important to check your documents carefully beforehand. If the documents are not in order, there is a chance that the trip will come to a premature end at Schiphol Airport.
It frequently happens that one of the parents refuses permission. Sometimes this can be pure unwillingness or obstruction, but there can also be good arguments against taking the trip. If you cannot work it out together and the parent who wants to travel insists on his/her plans, the case will have to be submitted to the court in a so-called article 1 : 253a BW procedure or summary proceedings. You then ask the judge for substitute permission. The permission the judge then gives will replace the other parent's permission. Should this be necessary, I will be happy to provide you with further information. Since such a procedure can easily take two months, it is important that you start asking for the other parent's permission early so that you do not get stuck.
The judge will have to weigh interests in such proceedings. In a case that father brought against mother before the East Brabant District Court, things went wrong for father (who asked for consent). He demanded that the court grant him substitute permission to fly the children accompanied by an uncle to Geneva to spend vacations with him and his son born from another relationship (i.e., the children's half-brother). Mother did not think this was a good idea because the children had indicated that they found it scary to fly and preferred to stay in the Netherlands. Moreover, mother had concerns about flying abroad during Corona time. A true dilemma, then, because it is also important for the children to see their father and half-brother. Yet the judge ruled in favor of mother. The children's fear of flying and their expressed desire to stay in the Netherlands this vacation outweighed the judge's interest in seeing their father and half-brother. Thus, in hindsight, father probably would have been better off booking a vacation in the Netherlands and traveling there himself. See: RECHTBANK OOST-BRABANT 31-07-2020, ECLI:NL:RBOBR:2020:3786 (source: Rechtspraak.nl).
In another case, first played before the District Court of Overijssel, father did receive substitute permission to travel with the children (including for family visits) to Portugal. But mother appealed. Meanwhile, on July 1, 2020, in connection with the Covid-19 outbreak, "code orange" was in effect for Portugal. This was reason for the Arnhem-Leeuwarden Court of Appeal (judgment July 10, 2020, see also: ECLI:NL:GHARL:2020:6092) to deny father's permission as yet and to set aside the earlier judgment of the Overijssel District Court. The decisive factor for the court was that although father had stated that he would not stay in the "areas marked with orange", he had not been able to specify this, while it was established that the airport was in any case located in an area with code orange. The court thus let the health risk outweigh father's argument that he wanted to visit family with the children and that the children had not seen this family since 2017.
It's always difficult to predict whether a judge will go along with one parent's vacation plans. it depends on very specific circumstances whether or not that permission is granted. Divorced parents would be wise to discuss their vacation plans with each other early on. Include the wishes of the children and any suitable alternatives in case you cannot come to an immediate agreement.
It frequently happens that one of the parents refuses permission. Sometimes this can be pure unwillingness or obstruction, but there can also be good arguments against taking the trip. If you cannot work it out together and the parent who wants to travel insists on his/her plans, the case will have to be submitted to the court in a so-called article 1 : 253a BW procedure or summary proceedings. You then ask the judge for substitute permission. The permission the judge then gives will replace the other parent's permission. Should this be necessary, I will be happy to provide you with further information. Since such a procedure can easily take two months, it is important that you start asking for the other parent's permission early so that you do not get stuck.
The judge will have to weigh interests in such proceedings. In a case that father brought against mother before the East Brabant District Court, things went wrong for father (who asked for consent). He demanded that the court grant him substitute permission to fly the children accompanied by an uncle to Geneva to spend vacations with him and his son born from another relationship (i.e., the children's half-brother). Mother did not think this was a good idea because the children had indicated that they found it scary to fly and preferred to stay in the Netherlands. Moreover, mother had concerns about flying abroad during Corona time. A true dilemma, then, because it is also important for the children to see their father and half-brother. Yet the judge ruled in favor of mother. The children's fear of flying and their expressed desire to stay in the Netherlands this vacation outweighed the judge's interest in seeing their father and half-brother. Thus, in hindsight, father probably would have been better off booking a vacation in the Netherlands and traveling there himself. See: RECHTBANK OOST-BRABANT 31-07-2020, ECLI:NL:RBOBR:2020:3786 (source: Rechtspraak.nl).
In another case, first played before the District Court of Overijssel, father did receive substitute permission to travel with the children (including for family visits) to Portugal. But mother appealed. Meanwhile, on July 1, 2020, in connection with the Covid-19 outbreak, "code orange" was in effect for Portugal. This was reason for the Arnhem-Leeuwarden Court of Appeal (judgment July 10, 2020, see also: ECLI:NL:GHARL:2020:6092) to deny father's permission as yet and to set aside the earlier judgment of the Overijssel District Court. The decisive factor for the court was that although father had stated that he would not stay in the "areas marked with orange", he had not been able to specify this, while it was established that the airport was in any case located in an area with code orange. The court thus let the health risk outweigh father's argument that he wanted to visit family with the children and that the children had not seen this family since 2017.
It's always difficult to predict whether a judge will go along with one parent's vacation plans. it depends on very specific circumstances whether or not that permission is granted. Divorced parents would be wise to discuss their vacation plans with each other early on. Include the wishes of the children and any suitable alternatives in case you cannot come to an immediate agreement.