If you have plans to move abroad, for example, and you and your ex-partner have custody of the children, you need permission from the other parent. If you leave without permission the other parent can request the court to order you to move back home. In case of sole custody, this permission is in principle not necessary, but according to the Supreme Court, under certain circumstances it can be different.
In the case that came before the Supreme Court, the following facts played a role.
The parties are the parents of a daughter, born in 2018. The father acknowledged the daughter before her birth. In 2018, the mother was ordered in summary proceedings to cooperate in a provisional access arrangement between the father and the daughter.
The father last saw the daughter in March 2019. The mother gave notice to terminate the rental of her home with effect from 1 April 2019. Since mid-April 2019, the mother and daughter have been registered as 'emigrated' in the Basic Registration of Persons. It is not known where the mother is staying with the daughter.
The father requested in court that he and the mother be given joint custody of the daughter and that a visitation and information and consultation arrangement be established. After the mother had registered her emigration, the father additionally requested that the mother be ordered to move back to the Netherlands with the daughter and that the mother be forbidden to take the daughter outside the Dutch borders again.
Judgment of the District Court and Court of Appeal
The court ruled that the custody of the daughter was now jointly held by the father and the mother and that the mother had to move back. Furthermore, the court established a care arrangement and an information arrangement.
The court of appeal rejected the father's request to move back.
According to the Court of Appeal, since the mother had sole custody of the daughter at the time of the removal, she was, in principle, entitled to care for and raise the daughter as she saw fit. This authority also included determining the place of residence of the daughter. However, it is true that also before the father's request for joint custody was granted, the mother was obliged, pursuant to Article 1:247 (3) of the Dutch Civil Code, to promote the development of the daughter's ties with the father. This obligation is connected to the right of the father and the daughter to contact each other. This right is, as far as the parent not in charge of the child is concerned, guaranteed by Article 8 ECHR and Article 1:377a paragraph 1 of the BW and, as far as the child is concerned, not only by the latter provision, but also by Article 9 paragraph 3 CRC and Article 24 paragraph 3 of the Charter of Fundamental Rights of the EU.
In view of article 1:377b of the Dutch Civil Code, the mother, as the parent with custody, was also under the obligation to inform the father about important matters regarding the person and the property of the child and to consult him - if necessary through the intervention of third parties - about decisions to be taken in this respect.
In the opinion of the Court of Appeal, the mother had grossly neglected the above-mentioned obligations resting on her by leaving with the daughter without any notice and by not providing any information about (the whereabouts of) the daughter to this day, as a result of which no contact whatsoever between the father and the daughter has been possible since March 2019. This was all the more true since the mother was thus acting in violation of a court-ordered visitation arrangement and at the time of departure a request from the father for joint custody was already pending. Unlike the court, however, the court did not draw the conclusion that the mother should be ordered to move back.
On the basis of Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the national authorities, including the courts, are obliged to make every effort to make the right to 'family life' between parents and their children possible. In that context the judge can, for example, order an investigation or use legal means of coercion to implement a visitation arrangement. However, neither Article 8 of the ECHR, nor Article 1:247 (3) of the Dutch Civil Code could constitute grounds for granting the father's request to order the mother to move back.
The father did not agree with this judgment of the Court of Appeal and appealed to the Supreme Court.
Supreme Court ruling
In case of joint custody, the judge has the possibility, based on Section 1:253a of the Dutch Civil Code, to prohibit the parent with whom the child has its main residence from living at a large distance from the other parent, or to order the parent who has the main residence to move back, or to settle at such a distance from the other parent that contact between the child and this parent can take place.
Although the mother had sole custody at the time of her removal and was therefore, in principle, free to choose the place where she and the daughter would live, the father had joint custody with the mother at the time of the court's decision. The Court of Appeal had failed to appreciate that Article 1:253a of the Dutch Civil Code, at the time of its decision, therefore offered a basis for ordering the mother to move back.
According to the Supreme Court, it should be noted that also in case of sole custody there is a basis to limit the freedom of choice of the parent with custody regarding the place of residence of the child if this parent does not comply with the obligation to promote contact between the child and the other parent (Section 1:247 (3) of the BW). By virtue of art. 8 of the ECHR, the judge in such a case has to take all measures that are appropriate in the given case to persuade the parent with custody to still cooperate in allowing access between the child and the other parent. An injunction to the custodial parent to move, or an order to him to move back, may be an appropriate measure. It should be taken into account that such a measure is less drastic than granting sole custody to the other parent, which is explicitly provided for by law (Article 1:251a paragraph 1 BW and Article 1:253c paragraphs 1 and 3 BW).
Do you have any questions about relocation, custody or access, or would you like advice? Please contact one of our lawyers without obligation. We will be happy to assist you.