Under Dutch law, any legal parent in principle has a right of access to his or her child. It does not matter who has parental responsability (parental authority ) of the children. What does matter is whether maternity/paternity is legally established.
A biological father of who paternity is not legally established is not a legal parent and has basically no right of access. However, this parent is not left empty-handed. He can request to establish parental access arrangements in court. In such cases, there are more stringent requirements. The biological father has to provide proof that he has or had so called ‘family life’ with his child. If there is a close familial bond, then the reasoning is that it is in the best interest of the child to continue to have access to that biological but not legal parent.
Under circumstances, other individuals who have a close relationship with the child, can also petition the court to establish arrangements based on ‘family life’. For example grandparents, foster parents and step parents. In these cases the law requires that there must be a close personal relationship.
Establishing access arrangements
When parents split up they will have to make arrangements on the division of care and upbringing tasks of the children, also called access arrangements.
Several studies have shown that regularly contact with both parents is of great importance for the stability and development of a child. Without regularity, parents must always make ad hoc appointments regarding access with the children and even regarding transferring them. This may cause misunderstandings and tensions which children will not benefit from. They need peace, clarity and structure.
When the parents are unable to come to agreements, they can petition the court to establish access arrangements. This is possible during divorce proceedings, but those proceedings are not a requirement. Even in cases where the parents have never been married or have never lived together access arrangements can be requested.
Children over 12 years of age will be invited by the court to give their opinion. Their opinion will be taken into account, but the court is not bound to follow their opinion. Generally speaking, the older the child, the more this opinion will weigh.
There are no fixed schedules or minimum or maximum amounts of time set for access arrangements. The court will take your particular circumstances into consideration. For example the time spend with each parents before the divorce and working schedules of the parents. The court will investigate what would be practical under the circumstances and the best interest of the child will always be paramount.
It is possible that the court may not immediately give a final ruling. For example, in case the court needs further investigation or deems an interim evaluation necessary.
The court has the ability to establish temporary access arrangements and rule that parents should return several months later to discuss progress.
If further investigation is necessary, the court may also ask the Council for Child Protection (Raad voor de Kinderbescherming) to investigate and advise on the matter. The recommendations of the Council for Child Protection are usually followed by the court.
Changes of circumstances
It may happen that after establishing access arrangements something has changed in the personal circumstances of the parents, such as a forced move to another city for a job. In addition, it is possible that at the time of establishing the access arrangements the court ruling was based on incorrect or incomplete information.
In such cases, a parent may ask the court to modify existing access arrangements.
Grounds for refusal
Although the access right of access is a fundamental right of legal parents and children, the court can refuse a parent’s right to access arrangements in some cases. The court will only refuse the right of access when:
- Access arrangements will serious damage the mental or physical development of the child
- The parent is unfit or not capable to fulfil access arrangements
- Children from 12 years or older have serious objections to access arrangements
- Access arrangements for other reasons are contrary to the interests of the child
When do before mentioned grounds apply? Think of a parent who has physically or sexually abused the child. Or a parent who is continuously under the influence of alcohol or drugs in the presence of the child. Also access arrangements can be refused if the access arrangements causes so much stress for a child that the child is suffering of that.
Resistance of the parent with whom the child lives, is not in itself a reason to refuse the other parent his or her right to access arrangements. There must be serious objections, not only mere resistance.
If you have any questions regarding this subject please contact one of our lawyers.
We will be happy to advise you.