Living on a tropical island is a conscious choice for an increasing number of people. After making the big move, some conclude that island life is everything they hoped for—and more. While for some the expectations of emigrating to another (is)land are more than fulfilled, for others things take a different turn and, at some point after emigrating, a growing desire or even an (acute) necessity arises to leave the island again.
When a caregiving parent moves with the children to a location far away from the former home, this can have consequences for the children’s ability to maintain regular contact with the parent who remains behind. The move may also affect the manner in which joint parental authority over the children is exercised. Not only does the children’s place of residence change, but their school changes as well, and the care arrangement may need to be adjusted. In such cases, the consent of the other parent (who is not relocating) is required, or substitute consent from the court; otherwise, the move would be contrary to joint parental authority. Fortunately, most parents who share joint authority over one or more children manage to reach an agreement together and through mutual consultation. With a bit of luck, the parent who remains behind gives permission for the child to leave the island, and good arrangements are made in a timely manner regarding contact between the remaining parent and the departing child. However, differences of opinion can also arise regarding the (necessity of the) relocation of a parent with parental authority and the children abroad, between the parent wishing to relocate and the parent who refuses consent.
Case law on relocation disputes is diverse and interesting. Judicial decisions show not only that the child’s best interests must take precedence in such complex disputes about “the move,” but also that other interests may sometimes outweigh the child’s interest. In relocation cases, judges must take all the circumstances of the case into account and carefully weigh the interests involved—particularly those of the child. In answering the question whether substitute consent will be granted by the court or whether the freedom to relocate with the children will instead be restricted, the “relocation criteria” developed in case law may play an important role, unless the relocation has no significant consequences for the existing care arrangement. A relocation with children without the consent of the remaining parent or substitute consent from the court can—both in cases of joint parental authority and sole parental authority—be prevented by a relocation ban or reversed if the court orders a return relocation. This may occur where the court determines that the relocation unacceptably jeopardizes the child’s interests. Even a parent with sole parental authority is nowadays not entirely free to relocate with a child, especially if the move results in a failure to meet the obligation to promote contact between the child and the remaining parent.
The departing parent must therefore take into account that the authority to decide on a relocation without (substitute) consent may later be restricted by the court if the relocation results in pressure on the children’s contact with the other parent or if such contact can no longer be maintained with the same frequency as before the move. This does not mean that a parent with sole parental authority always needs the other parent’s consent to relocate with the child. A prohibition on relocating or an order to return is, in appropriate cases, essentially an additional instrument to ensure that a child can (continue to) maintain contact with both parents. Recently, a Curaçao court ruled in a case where a parent with sole parental authority left the island with the child without prior consultation with the remaining parent, that—within the scope of summary proceedings—the weak legal position of the remaining parent constituted too drastic a measure to grant the most far-reaching claim: returning the minor to Curaçao. The child had not been legally recognized by the remaining parent, but there was nevertheless a serious parent-child relationship between them. Consequently, no order to hand over the child or (temporary) change of the child’s residence was made in that case. The court did, however, determine that the departing parent had disregarded parental authority by acting as they did. According to the court, it was far from conducive to the child’s mental well-being and development to remove the child so abruptly from their familiar environment without allowing the child to say goodbye to the remaining parent with whom the child had very regular contact, and without making arrangements for future contact and visitation. Ultimately, the court took appropriate measures to encourage the parent vested with authority to cooperate with contact between the child and the other parent, by establishing a temporary visitation arrangement in the judgment. Although the child was not returned to Curaçao, the remaining parent ultimately obtained substitute consent through subsequent proceedings to recognize the child, and it was determined that joint parental authority would henceforth be vested in both parents.
In short, the balancing of interests carried out by the court—and the factors that weigh most heavily—differs from case to case. If you are curious about our advice in your situation, please contact us at info@true-lawyers.com.