Moving abroad: Sole custody has its limits

A parent with sole custody traditionally has the right to decide all matters regarding their child without needing permission from the other parent. This includes moving abroad with the child if the parent so wishes. However, in recent years the rights of the other parent, usually fathers, are increasingly being taken into account if the move has an impact on their contact with the child. Sole custody has its limits, as you will discover in the following digest of recent case law.

Dutch law

The parent charged with sole custody has the authority and freedom to care for and raise the child as he sees fit. According to the Dutch Supreme Court, this also includes choosing the place of residence of the child. In principle, the parent with sole parental authority does not need permission from the other parent for a move, even if this is abroad. However, article 1:247 of the Dutch Civil Code also obligates the parent with custody to promote contact and a meaningful parental bond between the child and the other parent. And when moving abroad, this bond can be severely limited or even broken altogether depending on the final destination.

Dutch Supreme court ruling of 15 October 2021

How do you weigh these conflicting interests? In a breakthrough ruling of the Dutch Supreme Court on 15 October 2021, the Supreme Court provided guidelines for when this freedom of choice of the parent with custody can be limited. Article 8 of the European Convention on Human Rights (ECHR) guarantees the right to family life. The courts are therefore obliged to take all measures necessary to induce the parent charged with parental authority cooperates with contact between the child and the other parent. According to the Supreme Court, an outright ban on moving or an order to move back from abroad can be an appropriate measure to ensure family life with the other parent!

From this ruling the following relevant criteria have been developed:

  1. the influence of the move on the relationship between the child and the non-custodial parent;
  2. the age of the child;
  3. the child’s opinion (if old enough);
  4. the extent to which the child is rooted in its old or (already in his) new environment.

These criteria have been tested in a handful of recent cases and have led to a marked change in attitude towards the rights of parents without custody. In nearly 80 % of recent cases this regarded fathers without custody.

Below, we will discuss three cases of interest since the Supreme Court ruling.

Family court Noord Holland: 28 September 2022

In this case, the mother had moved to Portugal in 2020 with the child without telling the father beforehand. The parents had never lived together before or after the birth of the child and had lived relatively far away from each other in The Netherlands. The mother is not Portuguese, but she moved to be near her sister. The father had to travel to Portugal to see his child and had been doing so since June 2021. He argued that this was a severe limitation of his parental rights. Furthermore, the child was a preschooler, so could easily move back to The Netherlands.

The court held that, though it had sympathy for the father that he had to travel regularly to see his child, in this situation the mother had facilitated regular visits and had thereby fulfilled her obligation to promote contact. The mother declared herself willing to further expand the care arrangement and to cooperate in (longer) contact during holidays, weekends and public holidays. In addition, she was prepared to travel to the Netherlands with the child a number of times a year. An important factor was also that there was no real established routine before she moved. The court also held that the child was brought to Portugal legally and had by now rooted in Portugal. The move was not reversed.

Family court Rotterdam: 10 February 2023

In this case from Rotterdam, the court had to decide whether the mother should move back from Spain. Parties had had a relationship and a child was born in 2016. The parents broke up in 2019. Unlike the previous case, the father had a regular visitation arrangement every second weekend and during half of the school holidays. The mother moved to Spain with the child in August 2022. It was termed as a vacation, but the mother and child did not return. The father took immediate action. He requested the court to order the mother to return based on the Supreme Court ruling of 15 October 2021.

The court held that the mother’s offer to travel to The Netherlands three times a year for vacations and that the father could travel to Spain on prior consultation was not a sufficient effort to promote and preserve the bond the father already has established with the child. The court held:

As a result of the situation created by the mother, the father is no longer or hardly involved in the daily life of the minor. When asked during the oral hearing, the mother stated that she deliberately left without informing the father because of the resistance she expected. For that reason, she also told the minor when in Spain that he would continue to live there. The mother could have given the father a say, but deliberately declined to do so. In the opinion of the court, she therefore did not make sufficient efforts at the time of moving to promote contact between the father and the minor. The mother states that she now has nothing in the Netherlands since her family started a mini-campsite in Spain. In doing so, however, she ignores the interests of the minor, who has his social life and his father in the Netherlands. It is in his interest that he can continue to have contact with his father undisturbed.

The mother was ordered to move back to The Netherlands by the next school vacation in April. And to top that off, the father was also awarded joint custody of the child, so the mother would have to involve him in the future upbringing of the child.

Family court Rotterdam: 10 May 2023

In the final judgement in our digest, the court of Rotterdam had to decide the following. The parents had co-parented their child with special needs, but had never arranged legal custody. The mother broke off the relationship and moved to French Guyana. The father requested joint custody and an order for the mother to return. The court held:

The mother states that she wants to stay in French Guyana with the minor, but that she is open to contact between the father and the minor and that the father is welcome to visit the minor, but the Father has dropped the ball on this. However, it is up to the mother, as a parent with authority, to promote contact between the father and the minor. Moreover, it was the mother who changed the situation in which the father had contact with the minor on a daily basis, where the father took on half of the care duties by working from home to take care of the minor, by acting unilaterally .

When asked, the mother told the court that she has no money to bring the minor to the Netherlands or to allow the minor to go to the Netherlands. She also declared that she does not keep the father informed at all about developments in the (medical) situation of the minor. The last time the woman established a video call between the father and the minor was in April 2022. (…)The court is of the opinion that the mother has grossly neglected her obligation to promote contact between the father and the minor.

The court ordered the woman to return by 15 July 2023 on pain of a penalty of up to €10,000. If the mother does not move back, the child’s place of residence will be changed to that of the father.

Lessons to be learned

Act on time!

The most important factor when faced with a move abroad by the other parent is to take immediate legal action. Once a child has left The Netherlands, the Dutch courts quickly lose jurisdiction. Once a case has been brought, other methods of dispute resolution can be sought, such as cross border mediation. But is it imperative to have a case lodged with the Dutch courts.

A ban is easier than a reversal of the move

Requesting a ban before the move abroad takes place is a much easier case to decide. This is why some parents keep the move a secret until they have left The Netherlands. However, this can backfire. Nevertheless, the courts have to test what is in the best interest of the child, which led to the decision of the court of Noord Holland still falling in favour of the mother.

It is also doubtful how successful repatriation will be if the parent refuses to comply with the court order. In spite of the good intentions of the court, a Dutch ruling has little value in other jurisdictions outside of the EU.

Moving in a responsible manner

As a responsible parent, you are obliged to consult the other parent on important matters such as moving. And it may save a lot of time and money to request the court to decide on a dispute beforehand. There is no ban on moving, but if there is a meaningful relationship between the child and the other parent, you will have to take steps to ensure this remains as intact as possible.

Interestingly, none of the parents in these cases originated from the country where they moved to, so there was no strong bond with their destination beforehand. This may also be a factor in deciding whether a move is warranted or not.

Arrange parental custody

We cannot emphasize enough that parents should arrange parental custody as soon as possible. Though new legislation provides for joint custody in more cases (see: Automatic parental custody approved in The Netherlands), this does not count for children born before January 1st 2023 or fathers that have not yet been legally recognised.

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Feel free to contact us if you have questions or a dispute regarding moving abroad with your children.

Moving abroad: Sole custody has its limits
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