If you are entrusted with parental authority over a minor (or minors), you not only have the right but also the duty to raise and care for them. While raising children goes smoothly in many families, there are also cases where parents disagree when major decisions regarding the upbringing must be made.
Most disagreements resolve themselves, but there are also situations in which a fierce conflict arises between the parents, and neither is willing to compromise. I am referring to irreconcilable conflicts, matters of principle, and fundamental objections.
Recently, during a discussion, I consulted the law again, and my eye immediately fell on an article stating that in disputes over the joint exercise of parental authority, the judge makes a decision that he or she considers desirable in the best interests of the child or children (Article 1:253a of the Civil Code). This article provides the civil court with an independent framework for assessment. It is therefore possible to submit a request to the court for substitute consent—in place of the required consent of the other parent entrusted with parental authority over the minor(s).
For example, a case recently arose (in the Netherlands) in which the parents could not agree on which high school their son would attend after the summer break. The mother requested substitute consent to enroll her son in School A, after which the father, in the same procedure, requested consent to enroll the son in School B. Substitute consent from the court may also be requested to travel abroad with the minor(s), relocate, or change the child’s surname.
When assessing such a request, the judge must weigh the various interests of all parties involved, with the child’s best interest generally taking priority. However, established case law also shows that, although the child’s interest should be a primary consideration, other interests may outweigh it.
I think of a case in which the father lived abroad while the mother and minor children lived in Curaçao. Following a concerning incident among the children in Curaçao, the father requested the court for substitute consent instead of the mother’s required consent to change the primary residence of one of the children to his location abroad, and for substitute consent to travel there with the child. After a swift injunction hearing, the judge considered the mother’s emphasized interest in keeping the children together (in Curaçao) subordinate to the child’s relocation to the father abroad. The court reasoned that this interest—like the importance of keeping the parents together—was not so inviolable that it could not yield to a higher interest: the minor’s relocation.
I would like to share a remarkable passage from the judgment. The judge observed that dividing the children between the father and the mother has the positive effect of balancing the situation. Because the father lives abroad and communication between the parties is poor, both parents must rely on phone/video contact and holidays for visitation, and they depend on each other to properly fulfill their duty to provide information. This arrangement creates a fairer distribution of responsibilities and access.
This example illustrates that the judge will consider all circumstances when weighing interests. To succeed in requesting substitute consent from the court, it is therefore crucial to present the correct arguments to support your request. We are happy to assist you in doing so.