A long time ago, sometime in the first half of the 1990s, I lived in Amsterdam with my parents. After an adventurous vacation on my birth island, my parents decided that they wanted to remigrate to Curaçao, ten years after moving from Curaçao to the Netherlands.
I didn’t quite know whether to laugh or cry when they announced the move. What I do remember clearly is that I started negotiating with my parents. Ultimately, my best friend was allowed to come along for the duration of one year, which meant that my mother would become her guardian. My friend was at the time under sole parental authority of her mother, and the decision that she could spend a year with us in Curaçao was, to our great delight, made quickly. Parental authority means being responsible for the care and upbringing of a minor child. It is called parental authority when exercised by a parent. Parental authority can be exercised jointly by parents or by one parent, and guardianship is exercised by someone other than a parent.
Parental authority includes the right to make decisions regarding the care and upbringing of the child, such as school choices, medical decisions, and applying for an ID or passport. It also includes the obligation to promote the development of the child’s relationship with the other parent. My friend’s father at the time was not involved in her mother’s decision to allow her to move to Curaçao for one year. My friend had already had no contact with her father for years, and there was no visitation arrangement in place, although the principle is that a child and a parent are entitled to maintain contact with each other. Usually, given the child’s young age, the child is not aware of the right to contact with the other parent. I regularly hear from clients about the challenges that exercising parental authority over their minor child(ren) can bring, typically after the parents have separated.
The relationship between parent and child is very important, and in cases of joint parental authority, the court can even prohibit the parent with whom the child primarily resides from moving far away from the other parent. The court can also order that parent to move back or live within a distance that allows contact between the child and the other parent. Even in cases of sole parental authority, the court can limit the parent’s freedom regarding the child’s residence if the parent fails to promote contact between the child and the other parent.
From case law and international treaties, such as Article 8 of the European Convention on Human Rights, there is effectively an obligation for national authorities—including the court—to make every effort to enable ‘family life’ between parents and their children. The court is also expected to make every effort to establish a visitation arrangement and take all appropriate measures in the given situation. The right of contact assumes that a parent with joint parental authority must promote the child’s relationship with the other parent. This obligation applies both to parents with joint parental authority and to the parent exercising sole parental authority.
The measures a court may impose in a specific situation to enforce a visitation arrangement or division of childcare responsibilities depend on the circumstances of the case. The guiding principle in imposing such measures and making related decisions is that the child’s best interest is of primary importance. If only one parent has joint authority, there is no conflict regarding the exercise of authority. The parent with authority is the one who makes important decisions regarding the child. This does not mean, however, that a parent with sole authority has a free pass to make decisions that conflict with their obligation to promote the child’s right to contact with the other parent.
My friend ultimately spent one school year in Curaçao before returning to her mother in Amsterdam. Unfortunately, her mother never made an effort to foster the bond between my best friend and her father, and her father never went to court to request contact with his minor daughter. To this day, there is no contact between my friend and her father. While most parents do not act with bad intentions—more often it is fear and lack of trust—my friend recently concluded during a conversation about our childhood that she regretted never having the chance to develop a relationship with her father. Once, years after our tropical adventure, we saw her father in an Amsterdam Hema, but she did not dare approach him. I believe that after all those years of no contact, she had become too constrained and too lost to bridge that gap.