Ажырасу және ата-анасының қамқорлығы. Сіз не білуіңіз керек?

Ажырасу және ата-анасының қамқорлығы. Сіз не білуіңіз керек?

Are you married or do you have a registered partnership? In that case, our law is based on the principle of care and upbringing of the children by both parents, according to Article 1: 247 BW. About 60,000 children are faced with divorce from their parents every year. However, even after the divorce, the children are entitled to equal care and upbringing by both parents and the parents who have joint custody, continue to exercise this authority jointly according to Article 1: 251 of the Dutch Civil Code. In contrast to the past, the parents therefore remain in charge of joint parental authority.

Parental custody can be described as the whole of rights and obligations that parents have regarding the upbringing and care of their minor children and relates to the following aspects: the person of the minor, the administration of his assets and the representation in civil acts both in and extrajudicially. More specifically, it concerns the responsibility of the parents for the development of the personality, mental and physical well-being and safety of the child, which precludes the use of any mental or physical violence. In addition, since 2009, custody also includes the obligation of the parent to improve the development of the bond between the child and the other parent. After all, the legislator considers it in the best interest of the child to have personal contact with both parents.

Nevertheless, situations are conceivable in which the continuation of the parental authority of and thus personal contact with one of the parents after the divorce is not possible or desirable. That is why Article 1: 251a of the Dutch Civil Code contains, by way of exception to the principle, the possibility to request the court to assign the joint custody of the child to one parent after divorce. Because this is an exceptional situation, the court will only grant parental authority for two reasons:

  1. if there is an unacceptable risk that the child would become trapped or lost between the parents and it is not expected that sufficient improvement would be achieved in the foreseeable future, or
  2. if a change of custody is otherwise necessary in the best interests of the child.

The first criterion

The first criterion has been developed in case law and  the assessment of whether this criterion is met, is very casuistically. For example, the lack of good communication between the parents and the simple failure to comply with the parental access arrangement does not automatically mean that in the best interest of the child, parental authority must be assigned to one of the parents.[1] While requests for the removal of joint custody and the granting of sole custody to one of the parents in cases where any form of communication was completely absent[2], it was likely that there was serious domestic violence, stalking, threats[3] or in which the caring parent systematically frustrated with the other parent[4], were granted. With regard to the second criterion, the reasoning must be substantiated by sufficient facts that single-head parental authority is necessary in the best interests of the child. An example of this criterion is the situation in which important decisions have to be made about the child and the parents are not able to consult about the child in the foreseeable future and to allow decision-making to take place adequately and with promptness, which is contrary to the interests of the child.[5] In general, the judge is reluctant to convert joint custody into one-headed custody, certainly in the first period after the divorce.

Do you wish to have parental authority over your children alone after your divorce? In that case, you must initiate proceedings by submitting a request to obtain parental authority to the court. The petition must contain a reason why you only want to have custody of the child. A lawyer is required for this procedure. Your lawyer prepares the request, determines which additional documents he must enclose and submits the request to the court. If a request for sole custody has been submitted, the other parent or other interested parties will be given the opportunity to respond to this request. Once at the court, the procedure regarding the granting of parental authority can take a long time: a minimum of 3 months to more than 1 year, depending on the complexity of the case.

In serious conflict cases, the judge will usually ask the Child Care and Protection Board to conduct an investigation and issue advice (art. 810 paragraph 1 DCCP). If the council initiates an investigation at the request of the judge, this will by definition result in a delay in the proceedings. The purpose of such an investigation by the Child Care and Protection Board is to support parents in resolving their conflict about custody in the best interest of the child. Only if this does not lead to results within 4 weeks will the council proceed to gather the necessary information and issue an advice. Subsequently, the court can grant or reject the request for parental authority. The judge usually grants the request if he considers that the conditions for the request have been met, there is no objection to the request for custody and the custody is in the best interests of the child. In other cases, the judge will reject the request.

At Law & More we understand that divorce is an emotionally difficult time for you. At the same time, it is wise to think about parental authority over your children. A good understanding of the situation and the options is important. Law & More can help you determine your legal position and, if desired, take the application for obtaining single parental authority off your hands. Do you recognize yourself in one of the situations described above, do you want to be the only parent to exercise custody of your child or do you have any other questions? Please contact the lawyers of Law & More.

[1] HR 10 september 1999, ECLI:NL:HR:1999:ZC2963; HR 19 april 2002, ECLI:NL:PHR:2002:AD9143.

[2] HR 30 september 2011, ECLI:NL:HR:2011:BQ8782.

[3] Hof ’s-Hertogenbosch 1 maart 2011, ECLI:NL:GHSGR:2011:BP6694.

[4] HR 9 juli 2010 ECLI:NL:HR:2010:BM4301.

[5] Hof Amsterdam 8 augustus 2017, ECLI:NL:GHAMS:2017:3228.

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