Fathers who wish to acknowledge their child(ren) come in all shapes and sizes. There are fathers who contribute monthly to the costs of raising and caring for their child(ren) while barely seeing them, if at all, and there are fathers who have lived for years in a family setting with the mother of their child but never acknowledged the child because a (joint) visit to the civil registry never took place. There are also fathers who disappeared from the picture before the child was born and later come to their senses, wanting to play a role in the life of their child(ren). And then there are, for example, men who act as fathers but are not the child’s biological father.
Much has changed in recent years in the landscape of acknowledgment within our Kingdom. In the past, whether a child was born during a marriage was highly determinative of the legal position of the child and his or her father. Children born within a formal relationship, such as a marriage or registered partnership, automatically have two legal parents. Other children have only a mother, unless the father acknowledges the child. If the mother does not consent to the acknowledgment, the man may ask the court for substitute consent. The consent requirement was once based on the idea that women needed protection against acknowledgment by a man of a lower social class or a socially disreputable person who might, out of spite or malice, present himself as the father—something that could harm not only the mother’s honor but also the child’s interests. Although societal views have since changed considerably, the core idea—protecting the woman against unwanted interference in her life with the child—still persists. The downside of this approach, however, was that the legal position of the man and the child depended on the mother’s consent.
Previously, a biological father could obtain substitute consent for acknowledgment from the court only if he had a relationship with the child that qualified as “family life.” “Family life” concerns the protection of family and private life. For the mother and child, family life usually exists automatically. If a child’s parents are married, family life exists between both parents and the child; the same applies to unmarried parents who live together with the child as a family.
A biological father who has never lived with the child, however, does not automatically have “family life” with the child. That depends on various factors, such as the father’s demonstrated interest in the child, his relationship with the child’s mother, and the attention he has shown toward the child.
The possibility of obtaining substitute consent from the court to acknowledge a child initially developed through case law. By now, substitute consent has a statutory basis, and the legislature has deliberately refrained from limiting that possibility to cases in which “family life” exists between the man seeking acknowledgment and the child. In short, courts now weigh the man’s interest and claim to acknowledgment against the interests of the mother and the child in non-acknowledgment. The law further defines the mother’s interest as “the interest in an undisturbed relationship with the child.” According to established case law, harm to the child’s interests exists only if there are real risks that acknowledgment would impede the child’s social-psychological and emotional development.
A man may obtain substitute consent from the court if (i) he is the child’s biological father, (ii) the acknowledgment does not harm the mother’s interest in an undisturbed relationship with the child, and (iii) the acknowledgment does not harm the child’s interests. In proceedings for substitute consent, the court balances the interests involved, starting from the premise that both the child and the biological father have a claim to having their relationship legally recognized as a family-law relationship. Whether a request should be granted or denied cannot be answered in general terms and depends heavily on the specific facts and circumstances of the case.
The legal consequences of acknowledging a child include implications under statutory inheritance law, as children are the legal heirs of their parents, and parents may also be legal heirs of their child. In addition, a financial maintenance obligation arises, and a choice must be made regarding the child’s surname—either the mother’s, the father’s, or a combination of both. Depending on the law of the country of the father’s nationality, the child may also acquire the father’s nationality.
Incidentally, a biological father does not have to acknowledge a child in order to obtain a right of contact. A biological father may have a right of contact if such contact is in the child’s best interests, for example where a personal bond exists between the child and the biological father.
In the Netherlands, as of 1 January 2023, fathers automatically acquire joint custody with the mother upon acknowledging a child. With parental authority, a father can participate in decisions concerning the child’s upbringing. In Aruba, fathers have automatically obtained joint parental authority with the mother upon acknowledgment since September 2021. For fathers in Curaçao, it is still a matter of waiting for the implementation of the current draft legislation, which—hopefully—will not take too long.
If you have questions about acknowledgment, parental authority, or other matters relating to family and personal law, please feel free to contact me for a no-obligation consultation at eisden@true-lawyers.com.