Dutch legal expert Willem de Boer addresses the legalities of moving minor children to live with one parent after a divorce.
When the parents of children of minor age decide to get a divorce, they are faced with various choices. One of those choices is where the mother and father are going to live, and where the children are going to live.
If one of the parents decides to move and wants to take the children along, this often results in a conflict between the parents. In any case, it is important to know what is and what is not permitted. In the remainder of this article, I will use the basic assumption that the mother wishes to move with the children and that the father will remain in the place he is currently living in.
Basically, if a child is born in a marriage or a registered partnership, the parents share the authority of the child. It is also possible to have the authority shared by both parents registered in the authority registry. In this article, the basic assumption is that both parents share authority of the child.
Consent in Lieu
If both parents share the authority of the child, the basic assumption is they will communally determine the child’s domicile. In cases in which a conflict arises about this, a petition can be made to a court to grant consent in lieu. When making his decision, the judge will have to consider various interests, the child’s being the most important.
Moving Without Permission
It is not advisable to move with the child without permission from the other parent or the court. When it involves an international move, this is likely to be labelled an international child kidnapping. Yet it may also lead to serious consequences if it occurs within the nation’s borders, for example that the children will have to live with the father, or that the mother will have to move back within a certain distance of the father.
The Child’s Interests
As said, the child’s interests are the main consideration for a court. In this respect, contact with both parents at regular intervals is considered very valuable, as well as the importance of staying in its comfortable surroundings. Also, the social-economic interests of the child must be considered, for example the fact that the mother is enabled to look for work or obtain good accommodation that she is able to afford.
Interests of Others
Recently, the court have shown the tendency to also weigh in the interests of others – namely (mostly) the parents. For example, some of the determining factors may be the location where the parents work or may be able to find work, where the parents have their social network or locations where they can create a solid basis for their lives -yet, in some cases, this may also involve the place where a possible new partner lives, with whom they also may other children, or where it is healthiest for the mother to work.
As mentioned, a judge will consider many factors before making his decision. Below, you will find some of the factors that will be considered by a court:
- The mother must be able to provide proof that, in the interest of her child or herself, a move would be necessary and there is no other way of meeting this requirement. For example, think of a realistic job or housing opportunity, or the fact that all of mother’s family are living in a certain area, enabling her to have her children looked after when she goes to work. Also, in some cases, a mother may prove that she is not at all able to settle in in the husband’s current domicile, after having moved there.
- The move must be prepared properly, For example, think of available accommodation, the choice of schools and the prospect of employment.
- The way in which the children will keep in contact with their father will have to be contemplated. E.g. conversations via internet or over the phone, but also an arrangement for visits by the children to their father and vice versa. Also, this arrangement must be financially manageable for the parents, especially as distances become even greater.
- The level of healthy consultation between the parents also plays an important part. In the eyes of a judge, parents who are able to communicate with one another properly will be better capable of observing the child’s interests after a move.
- What may also be important is the division of care before the move. A mother who has always taken care of the children by herself is more likely to be granted permission to move than a mother whose child was also taken care of to a large extent by the father.
- If the parents were married and have not yet set up a custody agreement as part of their divorce, consent in lieu will generally not be granted.
- Children who are over the age of twelve will also be asked for their opinion and whether they are bound to the current domicile because of hobbies or for other reasons.
Moving the children following a divorce is not a decision you would want to rush into. Besides the fact that consent in lieu will have to be obtained from a court – if the father (or mother) does not agree- this permission will not be granted unless the request is properly founded. A simple ‘yes’ or ‘no’ regarding the question of whether the move will be granted cannot be provided, since every case is different from the next and since a court will consider many factors in its decision. As a result, it is very important to seek legal assistance from a lawyer who is experienced in these types of cases.
Willem de Boer
Loth Rupert De Boer Solicitors consists of five solicitors who specialize in family, juvenile, social security, labour/employment and asylum/ immigration law. They litigate and advise on basis of funded legal aid (addition) as well as on paid basis. The solicitors each have extensive experience, as they have been working for years as an advocate, teacher or lawyer at various (government) agencies in the aforementioned jurisdictions. For further information, visit their website.