On Nov. 24, 2020, the House of Representatives passed a bill regulating that joint parental authority (when referring to authority below, it means parental authority) automatically arises after recognition.
Bill
Under the bill, the mother and the recognizer (the mother’s unmarried or unregistered partner) will have joint custody of the child from birth, if the child is recognized by the recognizer before birth. If recognition takes place after birth, joint custody arises from the moment of recognition.
Exceptions to this main rule are:
- If mother does not consent to recognition and therefore a request for substitute consent to recognition must be made to the court. If the judge grants this request, the judge must be explicitly asked to award custody to the recognizer;
- If the parents decide together that sole custody remains with the mother after recognition.
The bill is currently before the Senate. The bill will only take effect if the Senate also passes the bill. It is not yet known when the Senate will consider the bill and, if they too adopt the bill, when the bill will actually go into effect. We will keep you informed about this.
Transitional law
The automatic entry into joint custody after recognition will only apply to children recognized after the introduction of the law change
Current situation
If parents are married to each other or in a registered partnership, they automatically receive joint parental authority upon the birth of their child. This is not the case in a cohabitation relationship or if parents do not have a relationship (anymore) with each other. In that situation, only the biological mother has custody. The partner in that case needs to acknowledge the child as well as apply for joint custody with the court(Rechtspraak.nl – Formulieren – Aanvragen gezamenlijke gezag).
If the mother refuses her consent to recognition and/or cooperation in joint custody, the court may be asked for substitute consent.
Thus, at present, several acts are still required to obtain joint custody. This leads to a high threshold for some parents to arrange joint custody. Moreover, parents often appear to be under the impression that recognition already automatically entails joint custody.
In the current situation, it is therefore very common that parents do not have joint custody of their child(ren), even though this was or is their intention. When parents subsequently separate, this can lead to particularly awkward situations. After all, the parent with custody can then only decide on important matters concerning the child, such as school choice or medical treatment. The lack of joint custody can also have major consequences if the custodial parent dies and the custodial parent has not determined in a will who, after her or his death, will have custody of his minor child(ren) as guardian or guardians. In that case, there is no one left with custody of the child. This creates a so-called custody vacuum. In short: the current regulations can lead to legal-and therefore practical-problems. For these reasons and to also give the social changes a legal basis, the bill was passed by the House of Representatives.
We will update you once the bill has passed through the Senate. If you have any questions regarding the recognition of, or custody of, your child as a result of this article, please contact one of our personal and family law attorneys.
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