As of January 1st, 2023 any parent that is officially registered on a child’s birth certificate will have automatic parental custody of the child in The Netherlands. Up until now unmarried parents had to register custody arrangements separately with the courts after the birth. This needed the cooperation of the biological mother.
More than half of the children currently born in The Netherlands are born to unmarried parents. Parents of children born within a marriage or registered partnership are automatically granted joint parental custody. Up until now, this was not the case for unmarried parents (in most cases fathers). The difference in legal status between married and unmarried parents is to a large extent legally unjustifiable in modern society. New legislation now repairs this difference going forward, but will still not be applicable to children born before January 1st, 2023.
For all children born before January 1st, 2023 to unmarried parents, joint parental custody will still have to be registered after the birth with the local family court. Otherwise the mother will retain sole parental custody.
Why is parental custody important?
First of all, it is important that both parents are closely involved in the care and upbringing of their children.
Legally, custody is important when you:
- apply for a travel document;
- want to move with the child to another address;
- travel abroad with a minor;
- enroll your child at school or daycare;
- need to make a medical decision or want to consult your child’s medical records.
When you have joint parental custody, both parents must give their permission for these important matters. If the biological mother has sole custody, in most cases she can decide these matters without consulting the other parent.
Probably most importantly, you automatically obtain sole custody if the other parent dies. You do not have to apply for legal guardianship or custody of your child if a tragedy happens.
Exceptions to automatic parental custody
Some parents may not want or be able to fulfill their parental responsibility. In that case the parents can submit a joint declaration at birth that the mother will have sole parental custody. The other parent can therefore recognise the child without assuming legal responsibility. The registrar will record the declaration waiving parental responsibility in the public register. The child will still have two parents on their birth certificate, but only the mother can make legal decisions for the child
If recognition of the child is granted by the courts (i.e the court declares a person the parent of a child), then the ‘new’ parent will not automatically gain joint custody. The court will have to decide separately whether it is in the best interest of the child to grant parental custody as well.
There is also an exception for when another person already has parental custody. For example, if the mother is married to another person, they will have parental custody. If the biological father then recognises the child, he does not gain custody automatically. When a legal custodian has been appointed, the father will not gain automatic custody of the child either.
The new law is only directly applicable to the recognition of a child in The Netherlands by Dutch nationals. According to Dutch law, the power to recognise a child and when recognition is legally possible, are governed by the national law of the person who wishes to recognise the child. The new law therefore does not necessarily apply to foreign nationals living in The Netherlands, even if their child is born here.
In principle, foreign law applies to the recognition of a child resident in The Netherlands by a father with a foreign nationality. However, in certain circumstances, Dutch law can still be applicable if foreign law does not allow for recognition by the parent. Dutch law may then be applicable as the law of the habitual residence or nationality of the child.
Whether parental custody is granted automatically after recognition is a separate matter legally. According to Dutch law, this depends on where the child has its habitual residence. If the child lives in The Netherlands, Dutch law determines who has parental custody. So, even if the recognition is ruled by foreign law, the parent may still have automatic custody according to Dutch law.
If a child is born outside of the Netherlands, then it will often depend on the country of birth what parental rights the father has.
The subject as to which law is applicable in international cases is legally complex. We advise that you get legal advice regarding the recognition and custody of your child in order to make sure you have full parental rights.
If you have any questions regarding automatic parental custody of a child, please do not hesitate to contact us.
You may also find useful information on our page about Children.