How will parental responsibility for my children be determined after my partner and I split up?

Parental responsibility after divorce or ending a civil partnership

If your child was born during your marriage or civil partnership, you both retain parental responsibility when you end your relationship. If you do not wish to share parental responsibility, you can petition the court to assign it to one of you. The court decides who will be granted responsibility for the children.

If you have more than one child, the court will assign parental responsibility for each child independently. From the age of 12, a child may ask the court to assign responsibility to a particular parent. The parent to whom responsibility is assigned has a duty to support the child until his or her 21st birthday.

The child’s opinion in determining parental responsibility

The court is required to ask children aged 12 and older to give their opinion when parental responsibility is assigned. There is no such requirement with respect to younger children. Children aged 12 and older whose parents file a divorce petition are automatically sent a notification by the court stating when they are expected to appear in court. It is up to the child to decide whether he or she wishes to appear. The child has the right to be heard, and is therefore given the opportunity to tell the court what he or she thinks about certain matters with respect to the break-up.

If a child under 12 asks to be heard, the court will invite him or her to attend the hearing.

Equal parenthood, co-parenting, parental responsibility and acknowledgment

The terms ‘parental responsibility’ (gezag) and ‘access’ (omgang) are sometimes used as synonyms, but they have different definitions:

• Co-parenting (co-ouderschap)

If you and your ex-partner co-parent, this means you share the care and upbringing of the children. Your child lives alternately with you and with your ex-partner. Co-parenting is only possible if both parents are willing. There is nothing in the law about co-parenting and the co-parenting situation has no bearing on parental responsibility or child maintenance. If you choose to co-parent, you and your partner make agreements about when the child is with each of you and who pays for what. You can lay down such agreements in a document drawn up by a civil-law notary or include them in a settlement.

• Equal parenthood (gelijkwaardig ouderschap)

  Equal parenthood means that the parents have equal rights and obligations with respect to the care and upbringing of their children. This does not mean that the child lives with each parent half the time.

• Parental responsibility (gezag)

  If you have parental responsibility for your child this means that you are the child’s legal representative and you have control over his or her money and property.

• Acknowledgement of parenthood (erkenning)

  Acknowledgement of parenthood creates a legal bond between the parent and child. However, if you acknowledge a child outside of a marriage or a civil partnership, you do not automatically acquire parental responsibility, nor are you the child’s legal representative. You must apply for parental responsibility.

Parental access rights

After a divorce, separation or ending a civil partnership, the former partners retain their parental access rights with respect to the children. If you share parental responsibility, you and your ex-partner must agree on care and access arrangements.

Even if one of you does not have (or no longer has) parental responsibility, that parent still has parental access rights and the right to be kept informed about the children. In such cases, the parents decide on an access arrangement together. There are no standard arrangements imposed by law. Both of you determine when, how often and for how long the non-custodial parent sees the children. The agreements you make are then incorporated into the parenting plan.

Ex-partner fails to comply with agreements

If your ex-partner fails to comply with the care or access arrangements, you can try to resolve the problem together or engage a mediator to help. As a last resort, you can ask the court to intervene. You must engage a lawyer, who will then initiate interim injunction proceedings (kort geding) on your behalf. The court has a number of options, one of which is to order your ex-partner to pay a fine for every day that he/she fails to comply with the arrangement.