First published in ACCESS Autumn 2015 e-zine by Marjet vanYperen-Groenleer
Moving with your children
It is not uncommon for the main care-giver to find a new partner who lives elsewhere in the country, or even abroad, several years after divorcing – or even during the divorce proceedings. Foreign nationals, who are temporarily or permanently resident in the Netherlands, have also been known to want to return to their country of birth or to be re-assigned elsewhere, either in the Netherlands or abroad. Former spouses then face the question as to whether they as principle care-giver can simply decide to move with their child(ren) to another town or city, or another country, against the wishes of the parent left behind.
The answer to this questions is NO. If the parent who is not moving also has custody of the child(ren), they too will have to give consent. If the consent is not given, the other parent can ask a court to give substitute consent. The court will then consider the best interests of the child(ren). Failing to have this consent, will mean the parent taking the child(ren) would be considered to be abducting them, whether they move within the Netherlands or beyond. They would be committing a criminal offense.
What can you do?
Abduction can be extremely damaging for a child. The International Child Abduction Centre in the Netherlands (IKO) is the agency that serves as the first port of call in abduction-related matters. Furthermore, in abduction cases, it’s advisable to engage the services not only of a lawyer in the Netherlands, but also of one in the country of destination. Execution from foreign court orders abroad can sometimes be problematic and an accusation could make it very hard for the abducting parent to return. Consulting experts is best place to start.
The Hague Convention on Child Abduction 1980
The Hague Convention is a legal tool meant to help a/the custodial parent to regain access to the abducted child, facilitating the return of the minor to their habitual place of residence. The signatory parties have all agreed to co-operate towards this. . The starting point in such matters is always the return of the child, and then, ruling regarding care. This also applies for the specific rulings on child abduction within the European Union. In the Netherlands in most cases the return of the child is ordered. So, if you have to deal with child abduction, please contact a specialized lawyer or the International Child Abduction Centre.
Mother and Father both come from France, they live in Wassenaar and have 2 children. The children go to the French school. The family moved to the Netherlands due to the father’s job with an international organisation. The mother does not work. She looks after the children. Father and mother are separating. Mother wants to go back to France with the children. Is that possible? We will use this “classic’’ expat situation as the basis on which to continue the discussion about child abduction started in my previous advertorial.
Does the father have custody? If the children were born during the marriage, then that is the case. If the father and mother are not married and the children were born in the Netherlands, the father only has custody if he has been registered in the custody register. If the children were born in France prior to the relocation to the Netherlands and, according to French law, the father has custody - irrespective of whether father and mother are married or not - this custody is recognised in the Netherlands under the Hague Child Protection Convention of 1996. Registration is then not required.
If the father has custody, then his consent for the relocation is necessary. If he does not give this consent, the mother may apply to the court for consent in lieu.If the mother moves to France without the consent of the father, then this is considered to be child abduction. The father may then start a so-called “return procedure” in France under the Hague Child Protection Convention of 1980. The basic principle of the Convention is “return first, then talk." Barring exceptional circumstances, it is likely that the French court will grant the return of the children to the Netherlands. The above-mentioned principle is under fire worldwide. The return of the children is mostly considered to be in their interest, but is that always the case? Opinion on this question is divided.
If the mother applies for consent from the court, a balancing of interests is made, in which the following interests play a role:
- The rights and interests of the main carer to move and the freedom to re-organise their life. This freedom may be restricted.
- The necessity for the relocation. Homesickness only is usually insufficient.
- The extent to which the relocation has been thought through and prepared. Leaving in a rush without a plan will count against the main carer. Where will the child be living? Where will the child go to school?
Is there a social safety net? Are there sufficient financial guarantees for the care? The court is not enamoured of people taking the law into their own hands, thus it is advisable to ask permission before emigrating and therefore to prepare properly for the relocation.
- The alternatives offered by the main caregiver for mitigating the impact of the relocation for the parent remaining behind. These might include contact via Skype, and additional holidays.
- The division of the care duties and the continuity of health care. The more care the parent staying behind has, the less likely the court will grant permission.
- The rights of the parent staying behind and the children to undiminished contact with each other in their familiar surroundings.
- The frequency of the contact between the children and the parent staying behind before and after the relocation.
- The age of the children, their opinion, the degree of rootedness in their surroundings. The relocation of a 16-year-old child who has friends in the Netherlands, is a member of sport clubs etc. is judged differently from the relocation of a toddler.
- The additional costs of the relocation.
- The extent to which parents are capable of mutual communication and consultation. With messy divorces the court might not have confidence in the contact between the parent staying behind and the child remaining guaranteed after relocation, because the suspicion exists that the parent staying behind might become sidelined as a result of poor or absent communication.
In its balancing of interests, the court certainly takes into account the international context and the expat surroundings in which a family mixes, but that is not the be-all and end-all. Permission is refused more often than it is granted, with the result that many mothers sit ‘imprisoned’ in the Netherlands. Conversely, fathers experience a growing estrangement between them and their children when the children emigrate. What is the wise thing to do? That’s not easy to say. Relocation and abduction cases constitute a terrible dilemma in which there is no right or wrong.