Substitute Court Permission for Child Decisions
Substitute court permission for child decisions is a legal procedure where a judge grants approval for a significant decision regarding a child when parents disagree. This commonly occurs in cases involving joint parental authority after divorce, such as relocation or school selection. The court always considers the child’s best interests.
When Is Substitute Permission Required?
In the Netherlands, both parents with joint parental authority share equal decision-making power over major matters concerning their child. Under Article 1:251 of the Dutch Civil Code (BW), parents must jointly decide on issues like residence, school choice, medical treatment, and religious upbringing. If one parent refuses to cooperate, you may apply for substitute court permission.
This is particularly relevant after divorce or dissolution of a registered partnership. For example, one parent may block a relocation due to distance from the ex-partner. Without both parents’ consent, you cannot act, risking legal consequences from the other party.
Legal Framework
The core provisions are found in Book 1 of the Dutch Civil Code (BW):
- Art. 1:251 BW: Parents exercise joint authority and must consult on major decisions. If no agreement is reached, the court decides.
- Art. 1:257 BW: In disputes over primary residence, the court may grant sole authority or modify the residence.
- Art. 1:377 BW: Similar rules apply for children under guardianship, handled by the district court.
The court assesses decisions based on the child’s best interests (UN Convention on the Rights of the Child, Art. 3). Recent rulings by the Supreme Court emphasize that refusal of consent must be justified and reasonable.
Step-by-Step Procedure
- Attempt mediation first: Mandatory mediation for divorce-related disputes (Mediation Promotion Act).
- Draft a petition: Outline the facts, the child’s interests, and evidence (e.g., housing documents).
- File with the court: Submit to the family law division of the district court in your jurisdiction. Court fees: €86 (2024) for non-joint matters.
- Hearing: Both parents are heard, sometimes including the child (from age 12). The Child Protection Council may provide advice.
- Judgment: Issued within weeks to months. The decision is enforceable unless suspended.
Tip: Engage a family law attorney, such as at Arslan Advocaten, for a robust case.
Practical Examples
Example 1: Relocation After Divorce
A mother wants to move from Amsterdam to Utrecht for a job. The father refuses due to travel time for visitation. She applies for substitute court permission. The judge approves if the move ensures stable education and adjusts visitation arrangements.
Example 2: School Selection
Parents disagree on elementary school: the father prefers Montessori, the mother a traditional school. The judge decides based on the child’s residence and preferences.
Example 3: Medical Procedure
A child requires therapy for an anxiety disorder. The father refuses. The judge grants permission if doctors deem it medically necessary.
Parents’ Rights and Obligations
| Requesting Parent | Other Parent | Court |
|---|---|---|
| Right to hearing and evidence submission | Right to defense and hearing | Decides based on child’s best interests |
| Obligation: Consult first | Obligation: Justify refusal reasonably | Obligation: Motivate the decision |
| Right to appeal (Art. 1:258 BW) | Right to cost compensation for unreasonable refusal | Must hear the child if appropriate |
Unjustified refusal may lead to changes in parental authority or restricted visitation.
Frequently Asked Questions
Can I obtain substitute permission for relocation abroad?
Yes, but stricter scrutiny applies. The court examines the impact on visitation and the child’s nationality. Success depends on a well-structured plan (e.g., vacation schedules). See our article on relocating with children after divorce.
What if the other parent does not respond to my request?
The court may rule in your favor by default (condemnation for failure to appear). However, the child’s best interests remain paramount.
How long does the procedure take?
Typically 2–6 months; expedited in urgent cases (summary proceedings). Costs: €86 court fee + attorney fees (€1,000–3,000).
Do I always need a lawyer?
Not mandatory, but highly recommended for complex cases. Pro bono assistance may be available via the Legal Aid Board.
Tips and Recommendations
- Document everything: Save emails, messages, and records of consultation attempts.
- Mediate first: Cheaper and faster; courts favor this approach.
- Involve the child: From age 12, they may be heard (Art. 1:377a BW).
- Avoid escalation: Adjust parenting plans via mediation.
- Related topics: Learn more about parenting plans, joint parental authority, or relocating with children after divorce.
- Contact Arslan Advocaten for personalized advice.
This article (~1,050 words) is current as of 2024. Need tailored legal advice? Call us.