The Klem Criterion in Family Law for Amsterdam
The klem criterion is an important test in Dutch family law, frequently applied by the Amsterdam District Court to determine whether joint parental authority serves the child's best interests, even if one parent objects. This criterion is relevant for parents in Amsterdam who struggle with upbringing decisions after a divorce, such as school choices in diverse neighborhoods or medical decisions for children.
What Exactly Is the Klem Criterion?
The klem criterion promotes both parents' involvement in upbringing, unless it harms the child. After a divorce in Amsterdam, sole parental authority is often granted temporarily to one parent in cases of conflict. The test examines whether the non-custodial parent is placed in an untenable 'impasse' due to lack of input on key matters, such as relocations within or outside Amsterdam, school enrollments, or treatments.
At its core: does sole parental authority create an unacceptable squeeze for the parent involved, without harming the child? If so, the Amsterdam District Court may award joint parental authority. This principle balances parental rights with child welfare, as set out in the law.
Legal Basis
The klem criterion is based on Book 1 of the Dutch Civil Code. Article 1:251 DCC governs joint parental authority and modifications, while Article 1:257 DCC outlines the procedure for applications by the non-custodial parent, prioritizing the child's best interests. The Supreme Court clarified this in rulings such as ECLI:NL:HR:2016:765, where structural exclusion from decision-making creates an impasse that may affect the child. Article 1:8 DCC and the UN Convention on the Rights of the Child (Articles 3 and 12) reinforce this.
At the Amsterdam District Court, you must demonstrate sustained impasse, not temporary disputes. The 2014 legislation promotes joint parental authority, which is more common in urban areas like Amsterdam due to complex family dynamics.
Examples from Amsterdam Practice
Consider a divorced couple in Amsterdam: the mother has sole parental authority over two children. The father, with weekly contact, wants a say in choosing between a primary school in the Jordaan and one in De Pijp. The mother ignores him, leading to escalation. This is a classic klem situation; the court may order joint parental authority if the child is not suffering.
Or: a parent plans a move from Amsterdam-West to Zuidoost for work without consultation. This hinders contact and creates impasse. But if the child benefits (e.g., a better neighborhood via the Municipality of Amsterdam), that prevails. In cases like ECLI:NL:RBMNE:2018:1234, the court awarded authority because one parent blocked medical decisions for a sick child.
These cases show that balancing with child welfare is crucial at the Amsterdam District Court.
Rights and Obligations Regarding the Klem Criterion
Rights of the Non-Custodial Parent
- Apply for joint parental authority at the Amsterdam District Court (Art. 1:257 DCC).
- Input on major decisions (Art. 1:251(2) DCC: school, healthcare, religion).
- Hearing, where children aged 12 and up are consulted.
Obligations of Parents
- Prioritize the child's best interests: no abuse of authority.
- Participate in mediation via the Amsterdam Legal Aid Desk or Child Protection Board.
- Share information on child development to avoid conflicts.
After a change, draft a parental authority plan. Contact the Amsterdam Legal Aid Desk for free advice.
Comparison: Sole vs. Joint Parental Authority
| Aspect | Sole Parental Authority | Joint Parental Authority |
|---|---|---|
| Decision-Making | One parent alone | Jointly; court in disputes |
| Klem Risk | Higher for non-custodial parent | Lower with consultation |
| Child's Best Interests | Fewer conflicts in crises | Both parents involved |
| Application | Via klem test | Standard post-divorce |
The table highlights differences; the klem criterion bridges both.
Frequently Asked Questions
Can I force joint parental authority via the klem criterion?
No guarantee. The Amsterdam District Court weighs the child's best interests. Prove impasse and try mediation at the Amsterdam Legal Aid Desk first.
How do I prove a klem situation?
Gather evidence: emails, messages, witness statements on exclusion. Document ongoing blockages. The Amsterdam Legal Aid Desk assists with preparation for the Amsterdam District Court.