The divorce process is an understandably emotional time. If you have children, then it is important to focus on what is best for them. You will always have a bond with your ex-partner via your children, so even if you hate him or her right now, you need to sit down together (if possible) and discuss their future care. This is particularly relevant if you are planning to settle in different countries after the divorce.
Fathers often fear losing meaningful contact with the children, while mothers can feel the father is second-guessing their primary care for the children. It is important to try and focus on a meaningful bond between both parents
Dutch law requires all parents to submit a parenting plan with the divorce petition. If a parenting plan is not submitted and no reasonable argument has been given why parenting plan has not been agreed upon, the court will refuse to handle the divorce petition.
The parenting plan contains provisions for the future custody and care of your children and the amount of financial support both partners will provide for the children. In a divorce in an international context different measures are required than if the parents lived five minutes apart. Who pays travel costs? What if the parent the children are living with moves again? How do you arrange visits for other family members? etc. etc. There is no fixed template that fits these cases, so a parenting plan has to be well thought through.
Custody of children
Parents have joint custody when a child is born during or before a marriage or civil partnership. Marrying your partner automatically results in joint custody if your child was born before the marriage.
If the parents are not married or in a civil partnership, then only the mother has immediate custody of any children born during the relationship. Even without legal custody the father still has a right to family life with the child. Family life guarantees the continuation of a meaningful bond between parent and child.
A divorce has no impact on a parent’s custody. Both parents remain legal guardians after the divorce. This means they have an equal say in decisions such as schooling, medical treatment, where the children live etc.
In exceptional cases, custody can be taken away from one parent. Single custody is only granted to one parent in rare cases where the wellbeing of a child is in danger. For example, because of mental health issues or because the parents are in constant disagreement about its upbringing.
Joint custody is not the same as co-parenting or equal visitation rights. You have to apply for visitation separately.
As a biological parent, you can apply for joint custody, even if you are in the process of separating from the mother. If the mother cooperates, she can grant you joint custody by filing a digital form registering you as custodian. However, this method is only available if the child is still living in The Netherlands. If the mother does not cooperate, you can also petition the court for joint custody.
The good news is that you do not need to have legal custody to have access to your child. If you have ‘family life’ with your child, then you have a right to access, which not only means visits, but also e-mail correspondence, skype and phone contact. All within reason of course.
Family life can also entail that non-biological parents have rights to visit ‘their’ children after a divorce. If there is a close familial bond, then the reasoning is that it is in the best interest of the child to continue to have contact with that ‘parent’.
There is no minimum or maximum amount of time set for visitation. This all depends on your particular circumstances. How much time was the child in each parents care before the divorce? How far are parents going to be living away from each other? What is practical under the circumstances?
If you can agree amicably, you have a great deal of leeway in how you arrange matters. Say you are a seaman and are on a four week on and four week off roster, you may want to arrange to see the children far more in the four weeks you are at home than only the weekends. And if you work irregular shifts, you may not want to fix the times you pick up the kids too rigidly.
However, disappointingly for some parents, co-parenting (sharing care 50/50) is not enforced by the courts. If one parent does not agree to a co-parenting arrangement, then co-parenting is hardly ever awarded by the courts.
The courts weigh the roles of the parents during the marriage. So, in many cases, if the mother has stayed at home or reduced her working hours to care for the children, it is deemed in the best interests of the children that the mother remains the main carer and visitation will be awarded to the father. In the main, the courts are much less flexible or imaginative in their orders than parents would be themselves.
Children over 12 years of age are interviewed by the court and asked their opinion on the arrangements proposed by their parents for their future care. Their opinion is taken into account in as far as possible, but the judge is not bound to follow the child’s opinion.
In most cases, holidays are part of your normal visitation arrangements. If you have joint custody, then the other parent must give permission to travel abroad. Otherwise, taking the children out of the country can be construed as abduction. It is therefore important to obtain permission from the other parent.
If the other parent refuses permission without good reason, then injunction proceedings can be brought to ask for consent in lieu of the other parent. As even injunction proceedings take some time to prepare, do not wait until the eve of your holiday before consulting a lawyer. Alternatively, make specific arrangements in your parenting plan for foreign travel.
Both parents have a legal duty to encourage contact and a good relationship between child and parent. This also means that a parent may not block communication or sabotage visitation. If a parent continuously does so, then this may be grounds to award the other parent sole custody.
Conflicts between parents
If the parents are having protracted disagreements about the upbringing of the children, the family court may involve child protection services. Before making a final decision, the court can ask for a report on what decision will be in the child’s best interests. Both parents are expected to cooperate fully with any investigation. In the meantime, proceedings will be adjourned. In practice, an investigation by child protection services can delay proceedings by six to nine months.
Both parents are obliged to contribute to the upkeep of their children until they are at least 18 years old. If the child is still in full time education and is not earning sufficiently at age 18, then the obligation to maintain the child extends to 21 years of age. This obligation may extend even further as long as the child is still in meaningful education.
Read more about child maintenance.
If you have any further questions, please contact us.