15 Jan 2021 Bill to create joint custody by operation of law through recognition
Recently, a bill on the automatic creation of joint parental authority by recognition has been adopted by the Dutch House of Representatives. This bill provides that unmarried and unregistered partners also have joint custody by operation of law upon recognition of a child.
The current form of cohabitation of parents says too little about the intention of a long-term parental relationship. Many children are born outside of a marriage or registered partnership. If parents are not married or have not entered into a registered partnership, currently only the mother who gave birth to the child is automatically the legal parent of the child. The unmarried or unregistered partner can then recognise the child at the municipality with the mother's consent. However, this does not automatically give the partner custody. A separate request will have to be submitted for this. In practice it appears that the unmarried/non-registered partner often does not realise that by regognition of the child he/she has not also obtained custody.
Difference between recognition and custody
Recognition creates a legal bond, a so-called family law relationship, between the recognizer and the child. Because of this, parent and child become each other's heirs.
Custody is about the legal responsibility for and control over the upbringing and care of a child. In addition, the person with custody is the child's legal representative and may therefore perform official acts on behalf of the child.
Bill on recognition and custody(34605)
With the Bill on Recognition and Custody, the interests of the child are better safeguarded. The distinction between children born to married or unmarried parents with regard to custody will be removed. The bill meets the needs of a changing society.
The bill ensures that when the unmarried or unregistered partner of the mother recognizes the unborn child, the mother and recognizer automatically have joint custody of the child from birth. When the recognition takes place after birth, the mother and this recognizer exercise joint custody of the child from the moment of recognition. The additional step of obtaining joint custody is therefore no longer necessary.
The Bill does contain a number of exceptions, for example when parents declare to the municipality that only the mother will have parental authority or in cases where the parents have not regognized the child together, but this has been done with the court's permission in lieu. In these cases joint custody does not arise by operation of law and the mother has sole custody.
When does this apply?
It is still to be seen whether the Dutch Senate will also approve the Bill. If the bill is adopted, the automatic joint parental authority will only apply to a recognition made after the new law has entered into force. For the situations up to the introduction of the law, the current legislation will continue to apply.
Should you have any questions, please do not hesitate to contact one of our lawyers. We will keep you informed of further developments!