Parental authority

This article is written for everyone who has questions about parental authority, also known as parental custody. You will get answers to questions like: What is parental authority? Who can have parental authority? How can you get parental authority? And can you lose parental authority?

What is parental authority?

Having parental authority over your child means that you can decide about the upbringing and care of your child. You may manage the assets of your child and you may perform legal acts in the name of your child, like signing a document on their behalf.

Meaning of parental authority according to the law

The law states that parental authority includes the duty and right of the parent to take care of and raise his/her minor child. Parental authority covers the following aspects:

• The person of the minor:
  – Education (the daily care and upbringing)
  – Care (the care and responsibility for the mental and physical well-being)
  – supervision (the care and responsibility for the minor’s safety)
  – development (the task of promoting the personality of the minor)
• The assets of the minor
• Legal representation of the minor

How is parental authority organised in the Netherlands?

In the Netherlands it is regulated that when the parents are not married or in a registered partnership at the time of the birth of their child, the mother automatically has parental authority over the child and the father does not. This means that the mother is also the child’s legal representative. The father can also apply for parental authority and will then have joint authority with the mother. Who can apply for parental authority and who cannot? And how can you apply for parental authority? I will gladly explain that below.

Who can apply for parental authority?

First of all the legal parent can, but who is that?
According to the law the mother of a child is:

• • The woman from whom the child was born.
  • The woman who has adopted the child.
  • The woman who has acknowledged the child.
  • The woman whose parenthood has been established by the court.

In the case of artificial insemination by an unknown donor, the woman to whom the biological mother is married or in a registered partnership at the time of the birth is also the mother of the child.

According to the law the father of a child is:

• The man who is married to mother or has a registered partnership at the time of the birth of a child.
• The man who has adopted the child.
• The man who has acknowledged the child.
• The man whose paternity has been established by the court.

The biological mother automatically has parental authority. There are various possibilities. Authority can take the following forms:

• Sole, if the mother is not married or in a registered partnership.
• Joint, if she is married or has a registered partnership:
  – always in case of a male partner
  – with a female partner if there is a donor according to the Artificial Insemination (Donor Information) Act.
  – with a female partner if the donor is known and the donor does not acknowledge the child.

When can you not exercise parental authority over a minor child?

• In case you are a minor.
• You are under guardianship; or
• if you have a mental disorder which prevents you from exercising parental authority.

Underage mothers aged 16 or 17 need a declaration of adulthood to get sole custody. A lawyer is needed to obtain this declaration. If the mother is younger than 16 years old, the child will have a guardian until the biological mother is 18 years old. A guardian is a non-parent who has authority.

Applying for parental authority for father

If you are married to the mother or have a registered partnership with her during the birth of the child, then, as I have mentioned above, you automatically get joint parental authority over the child.

How to apply for parental authority

For two parents, joint custody can be applied for via a form and without the need for a lawyer. You can find this form on this page of the judiciary website. Please note. This form is in Dutch.

If you are not the joint parents of the child, you can submit a request for joint custody to the court with the help of a lawyer. The following requirements apply:

• You have a close personal bond with the child. In the case of a child with one parent, that parent must have sole custody and the partner who is already caring for the child must provide a safe environment for the child.
• If there are two parents, it is required that the parent has had sole custody for three years prior to the request to the court and has taken care of the child together with the partner for at least one year.

Applying for parental authority for co-mother

In case of marriage or registered partnership with the mother, co-mothers only get joint parental authority if the donor is unknown according to the Artificial Insemination (Donor Information) Act. In that case joint parental authority is only possible if there is no other parent.

To clarify this I summarize the above once more below.

When do I have to apply for parental authority?

You automatically get parental authority over the child if you are married to the mother or have a registered partnership with her during the birth of the child.

If you have acknowledged the child, but are not married to the mother of the child or have a registered partnership with her during the birth of the child, you can apply for parental authority over the child together with the mother using a form and without needing a lawyer (see the link above).

How long does it take to handle the application for parental authority?

If you are not the legal parent of the child you can file a request for joint custody with the help of a lawyer at the court. In the application you explain why you want to have authority over the minor child. Your lawyer will also know which documents need to be included with the request. When this request is submitted to the court, the other parent and other interested parties will have the opportunity to respond to this request. This can be done orally at the court during the hearing. It is also possible for someone who objects to the request to respond in writing and to file a statement of defence through a lawyer. If someone agrees with the request, this can be communicated to the court in writing by means of a response declining to contest or by giving oral consent at the hearing. Finally, a person can also choose not to respond. If this is the case, a summons to the hearing will follow, but if the person does not respond, the court will consider the request without the input of this person. A hearing in this type of case is private, there is no audience present. Beforehand, children aged 12-18 are given the opportunity to let the court know their reaction to the request. This can be done orally or in writing. In principle, the court’s decision can be given four weeks after the hearing. In total such a procedure takes at least three months up to one year.

Can you also lose parental authority?

Authority ends when a child reaches the age of 18 and/or when the court decides so (earlier). The court can determine this when there is danger for the development of a child. Often this is preceded by the involvement of welfare authorities and/or the Child Care and Protection Board. If none of the above has led to an improvement or solution, the Child Care and Protection Board can ask the court to terminate your authority over the child. Then it can also be determined that another person will have authority in your place. Guardianship can be exercised by foster parents or a certified institution. In that case, you as a parent with a child in a foster family or institution no longer have authority over your child. However, the guardian will try to involve and inform you as much as possible about your child(ren).

Difference between parental authority and guardianship

With parental authority both parents or one parent has authority. With guardianship someone other than the parent has authority. So, guardianship means that the care and education of the child is provided by someone other than the parents. A guardian can also be appointed by parents in their will (so by the notary) or through registration in the court’s authority register. This registration can be done on request of a parent or by the court itself.

Contesting authority

When you have joint parental authority over your child, you keep this authority even when your relationship ends, for example due to divorce or when you stop living together. In case serious problems arise between you as parents which makes it impossible for you to exercise joint parental authority, it is no longer in the interest of your child to maintain joint parental authority. What can you do as a parent?

You can request to be given sole parental authority. By doing so, you contest the joint parental authority and ask the court to grant you sole parental authority. If this request is granted, the other parent will no longer have parental authority. This is drastic, but can be necessary for the sake of your child:

• for example when parents can no longer communicate with each other;
• if one of the parents is seriously addicted to alcohol or drugs;
• or when one of the parents goes to live abroad and is no longer available for consultation as is necessary between parents.

In the above cases a child would be “trapped” between the parents and if that cannot be solved, the court can change the custody to sole custody.
To file a request for sole authority you will need a lawyer. If you want to put forward a defence because you do not agree with a request for a change of authority by the other parent, you will also need a lawyer for that defence. In these proceedings a hearing is held where everyone can explain his or her views orally. Sometimes an advisor from the Child Care and Protection Board will also be present at this (private) court hearing to give the court some initial advice. This advice can also imply that further investigation by the Child Care and Protection Board is required.

In authority modification procedures, children between the ages of twelve and eighteen are asked by the court for their reaction, either in writing or orally. Parents are not present during this interview. After the hearing, a decision will take about four weeks, provided there is no further investigation by the Child Care and Protection Board. In total, this kind of procedure can last from three months to more than a year.

If you have any questions following this article, please do not hesitate to contact us. We will be happy to help you.

> CONTACT