The end of a relationship is never easy. However, it can be especially difficult when there are children involved — and you’re in a foreign country.
That said, you can rest easy knowing that multiple legal procedures are in place in the Netherlands to ensure that this transition is as seamless as possible for your children.
To find out more, we turned to Sophie Vermeule from GMW lawyers. Sophie has experience in complex international divorce cases, approaching each with knowledge, detail, and an understanding of the complex emotions involved.
Here’s what you need to know about children during divorces and separations in the Netherlands, straight from the expert.
Separating in the Netherlands with children: a step by step breakdown
Sophie walked us through the steps parents will need to take for their children when they are going through a separation.
1. Determine if the children fall under Dutch jurisdiction
One question that always arises when tackling legal matters is that of jurisdiction. This means whether the court has the legal power to make rulings over your case.
Jurisdiction is especially important when internationals are involved. However, when it comes to your children, things are actually very simple.
“In principle, it can be assumed that when the children reside in the Netherlands, a Dutch court is authorised to make decisions regarding their care and upbringing,” Sophie explains.
Put simply, regardless of whether your separation or divorce falls under Dutch jurisdiction, if your children live in the Netherlands, they will fall under the Dutch legal system.
“For example, the Dutch court will determine a care and contract arrangement,” Sophie explains.
The best approach is for parents to draw up a parenting plan in mutual consultation, where they agree on topics like the care and contact arrangement (indicating when the child will be with each parent).
“In cases where parents are unable to reach an agreement on the parenting plan, they have the option to seek a decision from the Dutch court. The Dutch court will then (for example) establish a care and contact arrangement,” Sophie adds.
If the Dutch court does have jurisdiction over your children, you can rest easy knowing that their welfare is paramount.
“Children have priority in the Netherlands in case of divorce or separation,” Sophie tells us.
In general, the court establishes its jurisdiction over children at the time of the petition.
However, Sophie tells us that in cases where the children move abroad during ongoing proceedings, the Dutch court may lose jurisdiction. In this case, parents would not need to write up a parenting plan.
We were never married. Does this change things?
Whether you and your ex were legally married or just cohabiting, the process regarding children is treated the same in the Netherlands.
“In principle, there is no difference between a divorce and separation when it comes to the children,” says Sophie. “Parents generally have to make agreements regarding visitation and child support.”
2. Specify who has parental authority
First of all, you may be wondering what parental authority even is, good question!
As soon as you and your partner become legal parents in the Netherlands, you automatically share joint parental authority over your biological children.
Parental authority means that you are responsible for raising and caring for these children until they are at least 18 years old.
“Since January 1st, 2023, unmarried and unregistered partners automatically obtain joint parental authority with the mother when the child is legally recognised,” Sophie tells us.
What about same-sex parents?
In the Netherlands, when two women are married or in a registered partnership, they have made use of an unknown donor, and one gives birth, the partner automatically shares joint parental authority.
If the mothers conceive with a known donor, only the birth mother of the child will automatically become the legal parent and will have parental authority over the child. The donor will not (automatically) be the legal parent, nor will the donor have parental authority.
If two men are married or in a registered partnership, they will only obtain joint parental authority after a court decision. However, if two men adopt a child, they automatically both obtain parental authority.
However, parental authority is not the same as visitation, Sophie explains.
“Parental authority is, however, not linked to the right to visitation. A parent without parental authority also has the right to have contact with the child.”
Both parents will have the right to visitation — unless it goes against the child’s best interest.
Visitation can be negotiated between the parents if things remain amicable.
However, if an agreement can’t be reached, even with the help of a mediator, the Dutch courts will step in and consider the roles of each parent in the children’s upbringing in order to reach a decision.
READ MORE | Everything you need to know about mediators in the Netherlands
For example, say you and your partner lived together with the children you had together before you broke up, however, you never married.
As we’ve explained above, in the Netherlands, your marital status won’t play too large a role when it comes to your children.
Case in point: parental authority.
GMW lawyers are the experts when it comes to dealing with international families and separation, you can contact them to speak with someone about your unique situation.
3. Draw up a Parenting Plan
As long as your children live in the Netherlands, you and your partner will be obligated under the Zorgvuldige Scheiding Act to draw up a Parenting Plan (ouderschapsplan).
“In the Parenting Plan, parents make agreements about the division of care, how often information is shared, how important matters regarding the children are decided upon and, about child support,” Sophie tells us.
Parents are legally obliged to draw up a parenting plan during a divorce (or termination of a registered partnership) when they were cohabitating and both have parental authority.
However, Sophie explains that it is highly recommended that a parenting plan also be drawn up if the parents were not cohabitating.
READ MORE | Divorces in the Netherlands: all you need to know
And yes, it can be about as difficult as it sounds, which is why there are mediators who specialise in helping parents draw up these parenting plans.
4. Involve your child in the process
Anyone who lives in the Netherlands knows that the Dutch believe in raising children to be confident and independent.
This makes it no surprise that the Dutch court will not only encourage you but require you to include your child in the process of separating.
As Sophie explains, “In the parenting plan, it should also be included how the children are involved in the drafting of the parenting plan.”
Of course, if your child is three years old and would much rather shove crayons up their nose, they’re not going to be expected to do much.
“This naturally depends on the children’s age,” Sophie says.
READ MORE | What are your rights as an international working in the Netherlands? We asked the experts
Again, some parents may find this aspect of the separation difficult, which is why a mediator can advise you on the best way to approach this.
5. Determine who pays child support
Who pays child support when separating in the Netherlands will be determined as part of the Parenting Plan.
“As a general rule, the parent with whom the children do not reside primarily pays child support to the other parent,” explains Sophie.
The two of you will make these decisions together, but what if you and your ex aren’t seeing eye to eye?
“If the parents are unable to reach an agreement, they can bring this issue to court. The judge will then determine the amount of child support.”
When finances and children are involved, it’s sometimes best to have an objective person at the table, which is why many people in the Netherlands opt to hire a mediator to help negotiate the terms of child support.
Splitting from your ex is never easy, especially when you’re trying to share a life with your children.
However, if there’s one thing the Netherlands does well, it’s look out for your kids during this turbulent time.
Sophie says it like a true lawyer: “In short, there are sufficient safeguards in place in the Netherlands to protect the interests of children during divorce.”
And ultimately, that’s what you both want.
Do you need a lawyer when separating with kids in the Netherlands? GMW lawyers are the experts. To speak with someone about your circumstances and situation, get in touch.
Have you experienced a separation with kids in the Netherlands? Tell us about your experience in the comments below!
