Parents are divorced and now one of them wants to move to another city or even another country. The motives are varied: better job opportunities or wanting to be with a new lover. But is it even allowed?
Parents who exercise joint custody of their children are obliged to consult together on important decisions affecting the children. Examples include school choice, important medical procedures and treatments, major vacations abroad, but also moving house. But what rules apply to moving with your child? What is allowed and what is not? The law is not conclusive; in fact, there is nothing in the law.
There is quite a lot of litigation about moving with children. In 2008, the Supreme Court, which is the highest court in the Netherlands, fortunately provided some guidance in a well-known ruling ("the Swiss emigration") The plan to move must be well thought out. The consequences of the move must have been well considered and discussed between the parents. For example, will the move affect the child's care arrangements or choice of school? What about the soccer club where a game is enjoyed every Saturday and training during the week? Or the adolescent child who has a part-time job at the supermarket? These are all issues that need to be discussed and resolved in advance. The character of the child can also play a role: one child easily picks up on a move to a different living environment, while for a child with a disability, a move can turn into an outright disaster, as he/she loses familiar surroundings. So this will all have to be thought through and discussed. There may also be other important factors involved, for example: mother is now pregnant with a new partner and wants to live with him/her. All interests must be weighed together.
When the other parent consents to the move, in principle there is nothing to worry about. But if the other parent refuses to give his or her permission, the judge will have to intervene with a so-called article 1 : 253a BW procedure (dispute between holders of parental authority). Under no circumstances is it advisable to play the role of your own judge and simply move out. There are cases where the parent who moved without permission was given a choice: either move back or the child will live with the other parent.
Litigation is costly and quite risky because there is no predicting what the judge will decide in a specific case. It simply depends on the circumstances of the case.
How things can go wrong is evidenced by this interesting judgment of the Hague Court of Appeal of July 29, 2020 (Court of Appeal The Hague July 29, 2020, ECLI:NL:GHDHA:2020:1387), in which a woman of Turkish background applied for permission to move to Turkey with the child to marry and live with her new partner (resident of Turkey). Father, also of Turkish origin and residing in the Netherlands, opposed. The court in this case heavily weighed the fact that mother had no income of her own and would become completely dependent on the new partner in Turkey in terms of housing and living expenses, and thus the child as well. The woman and the new partner did not yet know each other very well. The court found the plan insufficiently well thought-out and the risks for the child too great, and refused to grant substitute consent. Another factor was that the child would see much less of his father as a result of the distance. Mother defended herself against this with the offer that she would generously provide airline tickets so that the child could travel frequently to the Netherlands. But again she was dependent on her new partner for this, and so the court ruled that this problem (severe curtailment of the care arrangement as a result of the move) had not been adequately resolved beforehand either.
But there are also cases where the court did grant substitute permission for a move to the other side of the country or even abroad. As mentioned, it is very difficult to predict. Therefore, it is also important to do this in good consultation with each other, you put the best interests of their child first. This can be very tricky, but fortunately there are plenty of cases where it works.
Need more information about this tricky subject, or advice? I would be happy to help you further.
Parents who exercise joint custody of their children are obliged to consult together on important decisions affecting the children. Examples include school choice, important medical procedures and treatments, major vacations abroad, but also moving house. But what rules apply to moving with your child? What is allowed and what is not? The law is not conclusive; in fact, there is nothing in the law.
There is quite a lot of litigation about moving with children. In 2008, the Supreme Court, which is the highest court in the Netherlands, fortunately provided some guidance in a well-known ruling ("the Swiss emigration") The plan to move must be well thought out. The consequences of the move must have been well considered and discussed between the parents. For example, will the move affect the child's care arrangements or choice of school? What about the soccer club where a game is enjoyed every Saturday and training during the week? Or the adolescent child who has a part-time job at the supermarket? These are all issues that need to be discussed and resolved in advance. The character of the child can also play a role: one child easily picks up on a move to a different living environment, while for a child with a disability, a move can turn into an outright disaster, as he/she loses familiar surroundings. So this will all have to be thought through and discussed. There may also be other important factors involved, for example: mother is now pregnant with a new partner and wants to live with him/her. All interests must be weighed together.
When the other parent consents to the move, in principle there is nothing to worry about. But if the other parent refuses to give his or her permission, the judge will have to intervene with a so-called article 1 : 253a BW procedure (dispute between holders of parental authority). Under no circumstances is it advisable to play the role of your own judge and simply move out. There are cases where the parent who moved without permission was given a choice: either move back or the child will live with the other parent.
Litigation is costly and quite risky because there is no predicting what the judge will decide in a specific case. It simply depends on the circumstances of the case.
How things can go wrong is evidenced by this interesting judgment of the Hague Court of Appeal of July 29, 2020 (Court of Appeal The Hague July 29, 2020, ECLI:NL:GHDHA:2020:1387), in which a woman of Turkish background applied for permission to move to Turkey with the child to marry and live with her new partner (resident of Turkey). Father, also of Turkish origin and residing in the Netherlands, opposed. The court in this case heavily weighed the fact that mother had no income of her own and would become completely dependent on the new partner in Turkey in terms of housing and living expenses, and thus the child as well. The woman and the new partner did not yet know each other very well. The court found the plan insufficiently well thought-out and the risks for the child too great, and refused to grant substitute consent. Another factor was that the child would see much less of his father as a result of the distance. Mother defended herself against this with the offer that she would generously provide airline tickets so that the child could travel frequently to the Netherlands. But again she was dependent on her new partner for this, and so the court ruled that this problem (severe curtailment of the care arrangement as a result of the move) had not been adequately resolved beforehand either.
But there are also cases where the court did grant substitute permission for a move to the other side of the country or even abroad. As mentioned, it is very difficult to predict. Therefore, it is also important to do this in good consultation with each other, you put the best interests of their child first. This can be very tricky, but fortunately there are plenty of cases where it works.
Need more information about this tricky subject, or advice? I would be happy to help you further.