Judge's Substitute Consent for Child
Judge's substitute consent for child concerns a legal step in which a judge makes a decision regarding a child when parents cannot reach agreement. This often occurs with divorced parents who have joint custody, for example, regarding relocation or school choice. The child's best interests are always central in the judge's considerations.
When is substitute consent necessary?
In the Netherlands, parents with joint custody share responsibility for important decisions about their child. According to Article 1:251 of the Dutch Civil Code (BW), they must consult together on matters such as residence, education, medical care, and upbringing. If one parent does not consent, a request for judge's substitute consent for child can be filed.
This is particularly relevant after a divorce or termination of a partnership. For example, if one parent blocks a relocation due to the distance to the other parent. Without mutual consent, a parent may not act unilaterally, otherwise risking legal consequences.
Legal Basis
The foundation lies in Book 1 of the Dutch Civil Code:
- Art. 1:251 BW: Joint custody requires consultation on major decisions. In case of disagreement, the judge decides.
- Art. 1:257 BW: In disputes over residence, the judge may grant sole custody or adjust the residence.
- Art. 1:377 BW: For children under guardianship, similar rules apply via the district court judge.
The judge uses the child's best interests as the guiding principle (UN Convention on the Rights of the Child, art. 3). Recent Supreme Court rulings emphasize that a refusal of consent must be well-substantiated.
Steps in the Procedure
- Start with mediation: In divorce conflicts, mediation is often mandatory (Mediation Promotion Act).
- Draft a petition: Explain the situation, emphasize the child's best interests, and attach evidence (e.g., cohabitation agreement).
- File with the court: At the family law section of the court in your region, such as the District Court of The Hague for Rijswijk. Court fee: €86 (2024) for individual cases.
- Hearing: Both parents get speaking time, sometimes the child as well (from age 12). The Child Protection Board may advise.
- Judgment: Within a few weeks to months. This is immediately enforceable, unless suspended.
Tip: Consider engaging a specialized family law attorney for a solid petition.
Concrete Examples
Example 1: Relocation after divorce
A mother from Rijswijk wants to move to The Hague for work. The father refuses due to the travel distance for contact. The judge approves if the child gains better educational opportunities and the contact arrangement is adjusted.
Example 2: School choice
Parents disagree on a school in Rijswijk: one wants a Dalton school, the other a regular one. The judge decides based on location and the child's preference.
Example 3: Medical treatment
A child needs psychological help. One parent refuses. The judge grants consent if specialists deem it essential.
Rights and Responsibilities
| Requesting Parent | Opposing Party | Judge |
|---|---|---|
| Right to hearing and presentation of evidence | Right to respond | Decides with child's best interests paramount |
| Obligation to consult beforehand | Obligation to provide reasonable motivation for refusal | Obligation to substantiate the judgment |
| Right to appeal (art. 1:258 BW) | Right to cost reimbursement for unjustified refusal | Must hear the child if appropriate |
Unreasonable refusal may lead to adjustment of custody or restriction of contact.
Frequently Asked Questions
Can I obtain consent for an international relocation?
Yes, but the criteria are stricter. The judge assesses the impact on contact and the child's well-being. A good contact arrangement (e.g., during holidays) increases the chance of approval.
What if the other parent does not respond?
The judge may issue a default judgment without defense, but the child's best interests remain leading.
What is the duration of such a procedure?
Usually 2-6 months, faster in urgent cases via summary proceedings. For help in Rijswijk, contact the Juridisch Loket Rijswijk.