Parental authority, guardianship and right of access

Parental authority refers to the liability for the care and upbringing of minor child(ren): one has the right and the obligation to raise and care for their children. This is therefore different from the right of access or the division of (day-to-day) care and upbringing. For example, two divorced parents may both have parental authority, yet the children may not be with both exactly half of the time. Although daily care tasks may be divided unevenly, this does not affect authority – or at least it should not.

Parents who have authority decide on all important child matters, such as choice of school and major medical procedures. Also, parents with authority are liable for any damage or debts the minor incurs (depending on its age). In practice, this means that one is the child’s legal representative and manages its property.

Children must always be under authority. The parents of the child may have joint authority, or authority may rest with one parent or even with neither of the parents. Parental authority ends automatically when the child comes of age, i.e. turns eighteen.

Guardianship is authority over a child held by a guardian. A guardian is not the child’s parent, but can be a relative or a youth care institution. When a guardian and their partner have joint authority over the child, this is referred to as joint guardianship, e.g. in the case of foster parents.

When a child is born during or before marriage, both parents have authority and they retain this after the divorce. When children are born outside of a marriage, this does not apply. The mother giving birth to the child gets authority by the provision of law, and the other partner can get authority at the request of both partners by (recognition and/or) a note in the authority register. This does not require legal proceedings.

Parenting plan

All matters relating to the children are laid down in a parenting plan. A parenting plan is mandatory when filing for a divorce or terminating a registered partnership through court. Cohabitating parents who are separating have no obligation to lay down their agreements on the children in a parenting plan.

Disputes between parents may be settled by the court. This may include determining the child’s main place of residence, a change in the division of care and upbringing, or plans for a domestic or international removal. If cohabiting parents who both have parental authority want to request a decision on similar matters from the court, a parenting plan is mandatory, too.

If no parenting plan can be submitted, i.e. in the case of heated conflicts between the parents, a lawyer may substantiate a request for temporary suspension of this requirement or for a court decision limited to specific issues only.

At the other parent’s request, the court may be asked to change joint parental authority to single authority for the requesting parent. This happens in the case of heated conflicts that are not likely to improve in the near future, and that have an impact on the child. Such requests are only likely to succeed if severe issues are involved.

Rights of access & division of care and upbringing

The right of access is the mutual right of a person (parent, grandparent, stepparent, third party) and a minor to remain in contact. For parents who have parental authority, this also includes the right and obligation to care for and raise the child (division of care and upbringing).

When parents who have joint authority separate after their marriage or cohabitation, they are held to lay down how they want to divide the care and upbringing in a parenting plan as mentioned above.

According to Article 8 of the European Convention on Human Rights (ECHR), anyone who maintains or has maintained “family life” (or “private life”) with the child, has the right of access to the child. This means that everyone who has had more or less intensive contact with the child, is entitled to continue this contact. The International Convention on the Rights of the Child (CRC) may be called upon for assessment purposes. The court may decide otherwise if continued contact it is not in the interests of the child, for example if a parent is shown to lack responsibility in dealing with the child.

It has already been stated above that authority is not the same as right of access; the care and upbringing of a child may not be distributed evenly, even if parents have joint authority. Access or daily care is not the same as shared or equal parenting. A parent may have the right of access even without joint authority, and parents who do have joint authority do not necessarily have access to the child. Generally speaking, however, a parent who has authority or who maintained “family life” with the child will always have (the right of) access to the child. In 2013, the Dutch Supreme Court laid down various “tools” for judges to facilitate (future) access, and these tools should be applied in their rulings. The Supreme Court’s considerations were as follows:

“(…) If the judge regards as insufficient the grounds given by the parent with authority for failing to cooperate with access or an access plan, the judge shall take all appropriate measures to motivate the parent with authority to start cooperating. This obligation on the part of the national authorities, and hence on the part of the judges, is based on ECHR art. 8, which implies that these authorities should make every effort to facilitate the realization of family life between parents and their children (see also ECtHR, April 17, 2012, Case 805/09). The court may refer parties to mediation with their consent. Without the parties’ consent, the court may order an assessment by a third party such as the Child Protection Board or an expert opinion with the application of mediation (a.k.a. forensic mediation). Another option is to defer judgement and impose a provisional contact scheme. In this case, a progress hearing will be held where both parties can express their views on the execution of the scheme and access-related matters. The chance of the judge becoming more actively involved increases as the parent who has the authority provides insufficient grounds to motivate their failure to cooperate (…)”[1].

[1] NL Supreme Court, 17 January, 2014, ECLI:NL:HR: 2014:91