This month marks four years since I opened the doors of my own law firm, according to a notification from the social media platform LinkedIn. Without that notification, this milestone would undoubtedly have passed me by completely, as it is the busiest period of the year at the office. With the summer holidays behind us and the Christmas holidays in sight, it is noticeable that the number of inquiries in my practice regarding substitute consent to travel or move abroad increases.
A minor traveling abroad without supervision—or with the supervision of only one of the two parents holding parental authority—must demonstrate that permission for the trip has been given by the (other) parent(s) with authority. If the minor has only one parent with authority instead of two, naturally only the consent of the (sole) parent is required. In such a case, it is useful to have an extract from Kranshi and/or an extract from the parental authority register on hand to show at (border) control that there is only one parent with authority.
If you wish to travel or move abroad with your minor child(ren) but do not receive consent from the other parent with authority, you can turn to the civil court, which in disputes regarding joint parental authority will make a decision that it considers desirable in the best interest of the children. That’s right—the judge prioritizes the interests of the children, not those of either parent. That said, depending on all circumstances, other interests can outweigh the children’s interests.
For example, last year a mother living in Aruba requested substitute consent to go on a roughly nine-day vacation with her minor child to the Dominican Republic. The court ruled that the mother had sufficient interest in her request and had sufficiently demonstrated that she had made reasonable efforts to obtain the father’s consent for the minor to travel abroad. The father, however, refused consent. The court saw no reason to assume that the mother would withhold the minor from his parental authority or fail to return to Aruba and granted the mother permission to travel abroad for the requested period.
A mother in Aruba who, earlier this year, requested urgent substitute consent in summary proceedings to move with her minor child to New York was less fortunate. The father filed a counterclaim requesting that he henceforth be solely responsible for parental authority over the minor. Because this was an urgent procedure, the judge had to assess, based on the parties’ submissions alone and without further investigation or evidence, whether the claims in a potential main procedure had a sufficient chance of success to justify granting the requested relief in advance.
In weighing the interests, the judge considered all relevant circumstances, including but not limited to the necessity to emigrate, how well thought out and prepared the emigration was, the alternatives and measures offered by the emigrating parent to mitigate or compensate for the effects on the other parent, the parents’ ability to communicate and cooperate, the division of care tasks and continuity of care, the frequency of contact between the minor and the other parent before and after the move, the minor’s age, their opinion, and the degree to which the minor is rooted in their environment or accustomed to moves, as well as the extra costs of maintaining contact after emigration.
However, the Aruban mother wishing to move to New York with her minor child was denied substitute consent. The father’s request for sole parental authority was declared inadmissible because it was not suitable for summary proceedings. Although the court understood the mother’s wish and interests in moving to New York—the mother could not find work in Aruba and had secured a job in New York where her parents could provide financial support—the court ruled that the mother’s interests were less important than the minor’s interest in maintaining their current living situation in Aruba. While the mother is free to live her life as she chooses and select her place of residence, that freedom is limited by the interests of the minor, which must not be unreasonably compromised. The minor had lived almost their entire life in Aruba, was rooted there, and their entire social life and schooling took place in Aruba. The court concluded that moving abroad would constitute an unreasonable infringement on the minor’s interests. That the minor was resilient enough to handle a move and school change did not alter this assessment. It was uncontested that the minor was very attached to the father and his family, and that the father had always cared well for the minor. There was no reason to believe that it would be better for the minor to move to New York rather than remain in Aruba, given that the child was developing healthily and age-appropriately. The mother had not sufficiently demonstrated why her wish to move with the minor should outweigh the father’s and minor’s interest in maintaining uninterrupted physical contact. The court considered contact via FaceTime insufficient to mitigate the consequences of the relocation on the parent-child relationship.
It is crucial, when requesting substitute consent to travel abroad with a minor, to prepare adequately, provide a well-founded request, and ensure proper communication and alternative visitation options between the minor and the other parent.
If you wish to travel abroad with your minor child and do not receive consent from the other parent, or if you are faced against your will with a request for permission to move or travel abroad from the other parent holding authority over your minor child, you can contact me at eisden@true-lawyers.com. I will review your specific circumstances and wishes with you and work together toward an appropriate solution.