Relationships and relocations

When relationships break down, many expats prefer to return to their home country with their children and be near family and friends.  In this article, Lise-Milou Lagerwerf–specialist in family law–discusses the legal options, specifically from the position of an expat.

The parent wanting to relocate with their children–to another country or back to their home country–needs permission from the other parent. This is mainly because moving affects the contact between the children and the ‘not-moving’ parent. For many expats, this can lead to a difficult situation. During a relationship, it’s easier to make joint decisions about the country of residence but after separating, it’s often more difficult. If one parent doesn’t consent to the relocation, the parent wanting to move can ask the court for a ‘substitute consent to move.’

Court criteria

When granting permission to relocate, the court will decide in the best interests of the children. In a Supreme Court ruling, the court determines the criteria by which an application for a ‘substitute consent to move’ should be evaluated. In practice however, the court’s decision often comes down to a] the right–and the need–of the one parent to move and rearrange his/her life and b] the other parent’s right to maintain contact with their children.

In many cases, the court finds the importance of children maintaining frequent contact with the ‘not-moving’ parent, outweighs the wishes of the parent wanting to relocate. On these grounds, a ‘substitute consent to move’ is often denied.

Court decisions

In recent case law however–in the specific situation of expats–a ‘substitute consent to move’ has been granted by the court. The court then attaches more importance to the wishes and needs of the parent relocating with their children than to the right of the other parent maintaining frequent contact. This is because the ‘moving parent’ can work and has a house/network in the country of origin.

Furthermore, it is taken into consideration that continuing to live in the Netherlands can affect the state-of-mind of the parent wanting to move, which may have repercussions on the children. It is also considered important that the parent staying in the Netherlands can (easily) move to–or at least visit–the country of origin as this parent often has family living there as well. For expats who sometimes feel trapped in the Netherlands after a separation, this is a positive development.

Conclusion

It remains difficult to obtain a ‘substitute consent to move’ as it’s in the best interests of the children to have frequent contact with both parents. However, for expats living in the Netherlands and wanting to relocate or return to their home country with their children, recent case law now offers an opening to obtaining that permission.

Information about the author

Lise-Milou specialises in family law at GMW lawyers. Her focus is on (international) divorces. In addition, Lise-Milou is involved in issues regarding access arrangements, parental authority, maintenance and (international) relocations.  For  more information about the author please click here.

For more information about ‘divorce’ in the Netherlands please click here.