A proposal to enshrine in law that fathers* have automatic legal custody of a child once they are legally recognised as the father, was recently passed by the Dutch lower house. This legislation, fully recognising parental custody of unmarried parents, now awaits approval in the upper house.
*This bill is also applicable to lesbian parents. The non-birth mother will also gain custody rights from birth with the proposed legislation. We have chosen the term father in this article as the largest group that the legislation will be applicable to.
Currently, if the parents are not married or in a civil partnership, fathers still need permission from the mother to assume parental responsibility and gain joint parental custody of the child. Being registered as the father on the birth certificate (in Dutch: “erkenning“) does not create legal custody. Only the mother has immediate custody. This is often overlooked at the time of birth and can cause problems later on if relations break down. For example, a mother with sole custody can decide to move away to another area (or country) with the child, change schools or make other far reaching decisions without consulting the father.
The father can request the courts to award him joint parental custody. The courts will usually grant a father’s request. A petition will only be refused if awarding custody threatens the child’s well-being. However, before the court awards custody, the mother may have made irreversible decisions regarding the child, which can not be undone later.
Proposed future situation
Recent statistics show that 4 out of 10 babies in The Netherlands are now born to unmarried parents. Married parents automatically have joint custody, while unmarried fathers do not.
The proposed legislation will grant automatic custody to the person registered as the father/ parent and aims to:
- Better safeguard the best interests of the child;
- Remove an unjustifiable distinction between children born of married parents and of unmarried parents with regard to parental custody;
- Create provisions that are better suited to the needs of a changed society;
- Eliminate problems and conflicts caused by the current regulations.
The idea behind point 1 is that legal responsibility ensures that a parent has a role in the child’s life. The child will grow up with both parents (more) involved in their upbringing. Currently, mothers may act without regard to the father until the courts award him with responsibility. This regularly leads to conflicts and legal proceedings.
After the law enters into force, when a person that is not married to the mother and is not her registered partner, recognises the unborn child, they will jointly exercise custody of that child from birth. If recognition does not take place until after birth, the mother will exercise sole authority until recognition has taken place. From that time on, the parents then exercise joint custody.
Some parents may not want or be able to fulfill their parental responsibility. The new bill allows parents to make a joint declaration at birth that the mother will have sole parental custody. The father can recognise the child without assuming legal responsibility. The registrar will record the declaration waiving parental responsibility in the public register.
If recognition of the child is granted by the courts, then the father 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 has married another person, they will have parental custody. If the biological father then recognises the child, he does not gain custody automatically. Also, when a legal custodian has been appointed, the father will not gain automatic custody of the child.
The proposed 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.
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. So, 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 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.
When does this come into force?
The bill still has to be debated and ratified by the Dutch upper house. The proposal may never come into law, though this bill is expected to pass into law in 2021. If the law comes into force, it will only be applicable to children recognised after the legislation has come into force. The legislation will not create parental custody for existing cases.
If you have any questions regarding custody of a child, please do not hesitate to contact us. You may also find useful information on our page Children.