This article answers some frequently asked questions we are regularly asked about parental custody and paternity in The Netherlands for unmarried parents.
How is the non-birth parent legally recognised as the parent?
The birth parent normally gives the other parent, usually the father, permission to legally acknowledge the child as theirs (in Dutch: ‘erkenning’). The parent’s name is then added to the birth certificate of the child. The child then has two legal parents. This can be arranged before the birth, at birth or later on by a declaration at the municipality where the child was born. In all cases where there is a voluntary acknowledgement of paternity, the birth mother must agree to this.
Does acknowledgement as a parent also mean I immediately have parental custody?
Since 2023, if a parent recognises a child as their own, then they automatically gain joint parental custody with the birth mother. That is, unless they declare otherwise (see below) or the court grants paternity. However, if the child was born before January 1st, 2023, and you acknowledged the child before this date, then you do not have joint parental custody. The mother has to grant you joint custody separately via family court. Parental custody is registered in the custody register.
If you recognised your child after January 1st, 2023, even if it was born before this date, then you do automatically have joint parental custody. The legislation applies to all acknowledgements after this date.
What if I want to be registered as the father/ parent, but do not want to have parental custody?
You may declare at the time you acknowledge the child that the mother will retain sole parental custody. The registrar will register this with the acknowledgement. This means that the mother alone can make legal decisions for the child going forward. The mother can choose where it lives, what medical, where it goes to school etc. You will have no say in these decisions in most cases. You do have a right to visitation and you are obliged to pay maintenance if you are able to.
What if the mother will not let me recognise the child as mine?
If the mother will not let you acknowledge your child, then you can start a paternity case with the Dutch family court. The court will then establish whether the person requesting acknowledgement is the father. If the mother denies this, then a DNA test may be required. However, there must be enough evidence that the person may be the father before the court will order parties to cooperate with a DNA test. More information on this is available at our partner website, BNLegal, here.
The courts will normally appoint a special rapporteur (‘bijzonder curator’) to try to establish who is the parent. They will interview both parents and advise the court if it is likely the applicant is the father.
If the court recognises my paternity, do I then have joint parental custody?
No, the court will have to decide separately whether it is in the child’s best interest to grant joint custody. Though requests for paternity and custody are often granted together, the court may still find that joint custody is not desirable. For example, during and after the relationship the parents have been involved in many personal and legal conflicts. Granting joint custody would mean the child’s development being endangered because the parents do not agree on anything. However, this is the exception. We regularly see birth parents claiming that joint custody is impossible. However, in practice when joint custody is granted, the parents manage to work things out. There are also resources available via social services to help parents communicate about their children. A bad relationship does not prevent joint custody from being carried out.
What if the mother will only let me register as the father of the child if I do not seek joint custody?
This is something we are seeing more often since 2023. The mother will only agree to recognising paternity if the other parent signs away their right to joint parental custody. In order to be recognised as the father, the father must agree that the mother retains sole parental custody. We strongly advise our clients against signing away their rights to joint custody if they want to be actively involved in the child’s life. It is a misuse of the legislation to essentially force the other parent to give these rights up. If the other parent goes to court, they will almost certainly be acknowledged as the parent. The court can then decide whether there is any reason the other parent should not have parental custody.
Can more than one other parent be recognised on the birth certificate?
At this time it is not possible to register more than one parent besides the birth parent. If another person has been registered as the parent, then first the courts must invalidate the recognition (‘ontkenning vaderschap’) before the actual parent can be registered. In surrogacy cases it is therefore not possible to register both the surrogate and the legal parents after the surrogacy process has been completed.
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If you have questions about paternity or obtaining joint custody, please feel free to contact us.
