As a legal parent, you are responsible for the care and upbringing of a child under the age of 18. Legal parenthood gives access to the exercise of parental authority, Article 1:251 BW and beyond. Custody is exercised by the parents jointly or by one parent, according to article 1:253a BW. If you exercise joint parental authority, you must make decisions together on certain issues regarding your child, including education and health.
Requesting parental authority from Simmelink Law Firm
Not every parent exercises custody of their child or exercising joint custody creates problems.
Without parental authority, you cannot have a say in your child’s upbringing. Nor can you then act as his or her legal representative.
For questions about obtaining joint custody or sole custody, Law Office Simmelink offers specialized help. We specialize in family law and custody issues. With our experience and knowledge we can help you in a good and pleasant way with the important choices you have to make. Please feel free to contact us to discuss the possibilities and our approach.
What are my rights and duties with parental authority?
Parental authority comes with a number of rights and duties:
- Raising and caring: As a parent, you are both entitled and obligated to raise and care for your child. This includes making important decisions about parenting, such as the choice of residence and school for your child.
- Financial Responsibility: It is your duty to take financial care of your child, which means that you bear the cost of his or her care and education, at least until the child reaches the age of 21.
- Child liability: You are responsible for your child’s behavior. This means that if your child is under 14 and causes damage, you may be held liable.
- Legal Representation: Until your child turns 18, you act as his or her legal representative. This means that your child cannot enter into significant agreements, such as taking out an expensive subscription, without your consent.
In the case of joint parental authority, both parents share these rights and duties equally.
Automatic parental authority
According to Article 1:253b of the Civil Code, the biological mother has automatic parental authority. This does not apply to fathers and paternal mothers. To get automatic parental authority, they must be married or have a registered partnership with the mother during the child’s birth.
Whether acknowledging your child automatically gives you custody depends on the situation.
Recognition after Jan. 1, 2023
Since Jan. 1, 2023, unmarried and unregistered partners will automatically receive joint custody with the mother if the child is recognized, according to recent changes in the Civil Code.
Recognition before Jan. 1, 2023
Did you acknowledge your child before Jan. 1, 2023, and there was no marriage or registered partnership? If so, you as the father did not automatically acquire parental authority. Did you get married after the birth of your child? Or did you enter into a registered partnership? Then you have also automatically obtained joint custody . Condition is that you as father have acknowledged the child. So you are the parent of the child.
Separation
Both parents retain parental authority over the children after a divorce. Unless the court makes a different decision from the time you are married or registered partners.
Who has custody of a child?
Parents who are married or in a registered partnership have automatic parental authority over their child if it is born within their marriage or partnership, as stipulated in Articles 1:251 and 1:253aa of the Civil Code. If a child is born outside a marriage or registered partnership, the mother automatically has parental authority.
If a child is not born within a marriage or registered partnership, the mother from whom the child is born is the one who has parental authority over a child. A father has automatic custody only if he acknowledged the child after Jan. 1, 2023.
Situation before Jan. 1, 2023
If you as parents marry or enter into a registered partnership after the birth of your child and the father has acknowledged the child, the father automatically acquires parental authority.
If there is no marriage or partnership then the father must apply for joint custody with the mother. To do this, the father must first acknowledge the child. By acknowledging the child, the father becomes the legal parent, but does not yet have custody. Custody must still be applied for after acknowledgement.
The custody of a minor child may also rest with someone other than the biological mother and/or father or with an institution. That person is called a guardian. A guardian gets custody of the child if the parents cannot care for the child and the custody is terminated or the parents die. Parents can appoint someone as guardian of their minor child. Ultimately, the judge will determine who is appointed as guardian with preference always given to a biological parent.
The custody of (one of) the parent(s) may also be restricted if a child is placed in care by the court.
How do I know which parent has custody?
In the register of custody decisions are recorded. An excerpt can be requested in the custody register for a minor child. The register shows who has custody of a child. Please note, if a child is born from a marriage or a registered partnership, the custody register will not show that there are persons who have custody of the child (together). After all, no decision on custody was required. The parents were already automatically granted custody at birth through their formal relationship.
An extract from the custody register can be requested by a lawyer. This requires the last name, date and place of birth of the minor child.
How can I apply for parental authority?
There are two situations that arise when parents seek to obtain parental authority over a child:
- The parents agree;
- The parents disagree.
- You are in agreement: (online) application for joint custody
After Jan. 1, 2023, if the mother agrees with you that you have joint custody of your child, you will automatically obtain custody when you acknowledge your child at the municipality. The mother must give written consent for this.
Before January 1, 2023, after recognition, you must apply to the court for joint custody. You can apply for joint custody of your child with the mother through the Justice Department’s digital counter. This is free of charge. With your DigiD you can access the digital form ‘Application for joint custody’. You do not need a lawyer for this application.
You disagree: court ruling needed
If you do not agree then you will have to apply to the court for parental custody. For this you will need a lawyer. The judge will hear both of you during an oral hearing at the court. Often the judge will ask for an opinion from the Child Protection Council. In all cases, the best interests of the child play the greatest role. According to the law, the judge will not grant the request for joint custody only if:
- a. there is an unacceptable risk that the child would be trapped or lost between the parents and it is not expected that this would improve sufficiently in the foreseeable future, or
- b. a change in custody for any other reason is not necessary in the best interests of the child.
If the judge determines that you will not be awarded joint custody of a child you can appeal within three months of the judge’s decision. You will need a lawyer to do this.
How is joint parental authority settled after a divorce?
After a divorce, the parents retain parental authority over the children. This also applies to unmarried people who have joint custody of a child and the relationship ends. Parental custody can only be changed at the request of one of the parents and after a decision of the court. The latter may, in exceptional cases, grant parental authority
to sole custody for one of the parents if it is in the best interest of the child.
A request to no longer want joint custody of a child can only be granted if the child is “trapped or lost” or at risk of being trapped or lost, or if a change in custody is necessary for some other reason in the child’s best interest.
In addition to the parents, a child 12 years of age or older can also ask the court for a change in custody of him/her.
You have joint parental authority and disagree on a decision to be made
In case of joint exercise of parental authority, disputes about this can be submitted to the court at the request of the parents or one of them. You can think of a school choice or a decision to be made about a child’s medical situation: should the child be vaccinated or not.
The court may also, at the request of the parents or one of them, establish an arrangement regarding the exercise of parental authority. This arrangement may include, for example, establishing a child’s primary residence, a visitation arrangement or informing the other parent about a child.
Custody jointly with one other than the parent
It is also possible for someone other than the biological father to obtain custody of a minor child, such as a stepfather or mother. For this, you must file a request with the court. The court will make a positive decision only if:
- you and your partner have been caring for the child together for at least 1 year;
- your partner has had sole custody of the child for at least 3 years;
- and the best interests of the child do not oppose it. This includes the role of the other parent in the child’s life.
Sole authority
The legal principle is that after a divorce, both parents retain custody of the child. Divorce may have severely disrupted a relationship between you and your ex-partner. This can lead to problems. If the problems persist, you can ask for sole custody in court.
The court may award custody to one of the parents in exceptional cases; only if it is in the best interest of the child. Therefore, terminating joint custody is a drastic remedy. After all, one of the parents loses custody.
There are situations where it is conceivable that it is best for a child that one parent has custody. For example, if:
- the parents can no longer consult with each other about the child and it is not to be expected that this will improve sufficiently (in the short term);
- one of the parents goes to live abroad and can no longer be reached.
