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Emigrating with children after a divorce: the consent that comes before everything

With joint custody you can't just go abroad with the children — you need the consent of the other parent, or substitute consent from the court. What the court weighs, and why leaving without consent is legally child abduction.

5 min read

Written and checked by Auke on , against the sources at the bottom. Is something no longer right? Report it below and I'll fix it.

If you share custody of your children with your ex-partner after a divorce, moving abroad is not a decision you can take alone, however good your plan. Custody is the right and duty to take the decisions about your child, and keeping joint custody is the norm after a divorce. You need one of these two:

  • the consent of the other parent;
  • substitute consent from the court.

The second is a procedure with a mandatory lawyer. It takes at least six weeks and sometimes more than a year.

Almost nobody writes about this subject, while part of the emigration dreams founder on it. So we lay it down here honestly and early.

What is the rule: decide together, or the court?

A relocation of the child is a custody decision. Rechtspraak.nl, the website of the Dutch judiciary, itself names "a relocation of the child with one of the parents" as an example of a dispute the dispute procedure exists for. That procedure is the way to the court when parents with custody don't agree.

That gives the route. You need one of these two:

  • the consent of the other parent with custody, in writing, because you'll be showing it often;
  • substitute consent from the court, under article 1:253a of the Civil Code.

That article says exactly what the court does: "disputes on this" can "be submitted to the court at the request of the parents or one of them", and the court "takes such a decision as appears to it desirable in the interest of the child".

If you have sole custody, you don't need that consent. You do need the papers to prove it at the border: an international extract from the BRP, the Dutch Personal Records Database, for the child with parent and custody details, no older than three months.

How does the procedure go, and how long does it take?

Rechtspraak.nl describes the steps:

  • Your lawyer files a petition. Without a lawyer it can't be done.
  • The court informs the other parent. They can put up a written or oral defence and add requests of their own, for instance to change the care arrangement.
  • Children from the age of eight are invited to a child interview of about twenty minutes.
  • At the hearing, which is not public, the Child Care and Protection Board often sits at the table to advise. The Board is the government service that advises the court on the interest of children.
  • The judge first examines whether you can still reach agreement, if need be through mediation: help from a neutral mediator.

If there is no parenting plan, the judge can first order you to draw one up. In it you jointly set down how you share the care for the children.

Step Term according to Rechtspraak.nl
Hearing within 6 weeks of receipt of the petition
Decision (order) usually within 4 weeks after the hearing
Lodging an appeal within 3 months of the decision
Whole procedure at least 6 weeks to more than 1 year
BRP or custody-register extract for the border no older than 3 months
Child interview from age 8, about 20 minutes

You pay court fees and the costs of your lawyer. Whoever has a low income can ask the municipality for special assistance with the court fees or apply for subsidised legal aid.

Time-wise, don't count on the six weeks to the hearing. With a defence, an investigation by the Board and an appeal the procedure can run well over a year. So this belongs at the start of your orientation, not at the end.

Rather have everything on one list?

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We use your address, and your departure date if you fill it in, only for the checklist, the guide and the mails after it. You can unsubscribe under every mail.

What does the court weigh?

The law gives one yardstick: the interest of the child. The judge fills it in with the facts of your situation:

  • why the move is necessary;
  • how well it's prepared;
  • what you offer to soften the consequences for the other parent;
  • what the contact between child and remaining parent is like now;
  • what the child itself wants and where it is rooted.

Whoever seriously wants to emigrate therefore builds the request as a plan for two parents. Whoever can't bring themselves to do that can already see the verdict coming.

The Dutch government is brief about it: "Is a child taken to another country without the consent of the other parent? Then it is international child abduction." The Hague Child Abduction Convention governs the approach between the treaty countries, and the Central Authority for International Children's Affairs is the link between the Netherlands and abroad. You then start your new life with a court case in two countries. No destination is worth that.

One more confusion to clear up: the consent form "travelling with a minor abroad" from the Dutch government, which you show at border control, is for holidays and single trips. It does not replace the consent to relocate. For an emigration you take along:

  • the written consent or the court's order;
  • a copy of the other parent's ID;
  • the recent extract with custody details.

Vertrekklaar organises your journey; this part belongs with a family law lawyer, and early. One good conversation tells you whether your plan stands a chance. You want to know that before you sell a house, not after.

In Vertrekklaar this belongs to the phase Closing down the Netherlands of the journey: the same steps, but for your situation — in your order, tickable, and with the deadlines watched. See how the step-by-step plan works.

Want to know more about this?

Choose your destination and we'll send you the departure checklist, with every step in order, and five mails about the pitfalls and the real costs. After that, an occasional email, including one offer. You can switch it off at any time.

We use your address, and your departure date if you fill it in, only for the checklist, the guide and the mails after it. You can unsubscribe under every mail.

What this rests on

The facts in this article come from these official pages. Rules change. When in doubt, go by the source, not this article.

Is this still correct?

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