To request an extract from the Guardianship Register, an application form must be completed and submitted to the registry of the Court of First Instance, where a public register is maintained by the clerk in which legal facts regarding the exercise of guardianship over minors born in Curaçao are recorded. The application form must be accompanied by several documents, including an extract from the civil status registers, the minor’s birth certificate, and a valid ID of the applying parent.
Minors are automatically placed under guardianship if they are born during a marriage or registered partnership. If the mother is unmarried and not in a registered partnership at the time of birth, minors are automatically under the sole guardianship of the mother. Joint guardianship can be obtained without court intervention by having it recorded in the Guardianship Register at the Court of First Instance upon request of both parents. The court can, at the request of one or both parents, determine that guardianship over a child belongs to one parent if, for example, there is an unacceptable risk that the child could get “stuck” or lost between the parents and no sufficient improvement is expected in the foreseeable future, or if a change in guardianship is otherwise necessary in the child’s best interest.
In practice, it sometimes happens that joint guardianship over a minor is terminated and that one parent is assigned sole guardianship. For instance, over the past year, I submitted a divorce request on behalf of a parent, along with a request to the court to assign sole guardianship to the father. The court ultimately ruled that this request was justifiable because a change in guardianship was deemed in the child’s best interest. The Guardianship Board agreed with the court, reasoning that the child had already been effectively raised by the father alone for several years, with the mother barely involved. The father faced situations where he could not consult with the mother regarding the child and had to make all decisions alone. Additionally, he encountered problems when decisions required the mother’s consent, such as when he wanted to travel abroad with the child.
This does not change the fact that the legislator’s starting point is that joint guardianship continues after a divorce. Nevertheless, in certain cases, it is necessary for only one parent to exercise guardianship after the divorce. Because continuation of joint guardianship is the default, the parent requesting sole guardianship bears a duty to provide justification. In a recent (and similar) ruling by the Court of North Holland at the end of January 2022, the judge found in a comparable case, where the guardianship parents had also had minimal contact for several years, that the minimal necessary basis for joint guardianship was lacking. This created, according to the judge, a risk that certain decisions regarding the child, such as school choices or medical treatment, could not be made in a timely manner. Moreover, the court noted that there was no indication that the parents would be able to consult with each other regarding the child in the near future, as the father had been unreachable for a considerable period.
Requests for sole guardianship are, of course, not granted in all cases. For example, the Court of Appeal in ’s-Hertogenbosch recently concluded that it had not been proven that the father failed to cooperate in decision-making. The court first considered that joint exercise of guardianship requires that parents enable decisions regarding the child’s care and upbringing to be made in a manner that is not burdensome for the child and does not endanger their safety. In cases where parents no longer live together and communicate poorly or not at all, it is important that the caregiving parent can make decisions necessary for the child’s daily life and safety, and that the non-caregiving parent does not block these decisions. The Court of Appeal ultimately ruled that no change should be made to the joint parental guardianship. Granting the request would have only reinforced the negative image of the father that the minor already had, which was not in the minor’s best interest. The court strongly recommended that the parents seek professional assistance to improve their communication for the sake of the child.
If you have questions about (parental) guardianship or are faced with a request for sole guardianship, please feel free to contact me. Together, we can determine the steps necessary to achieve the desired outcome.