Visitation and Parental Responsibility
Parental responsibility can be divided in legal custody and physical custody. These are separate things and should be looked at separately. When a parent without legal custody wants to see their child, it’s called ‘visitation’ or sometimes ‘access’ instead of ‘physical custody’. The rules are mainly the same, though.
Legal Custody
Legal custody is about the right (and responsibility) to make major decisions about your child. Examples are applying for a passport for your child, school enrollment or a move. These things require the consent of all custodial parents. If there are two parents with custody, both parents should give permission.
If one of the custodial parents does not consent to such a major decision, the other parent can take the matter to court. This requires the help of a lawyer.
Parents who are married automatically have joint legal custody over their children. The same goes for unmarried mothers. Since January 1, 2023, unmarried fathers who recognize their child also automatically have legal custody. Unmarried fathers who acknowledged their child before January 1, 2023, do not automatically have legal custody. Those parents can arrange joint legal custody using a form at www.rechtspraak.nl.
If the mother does not want to cooperate with joint legal custody, the father can ask the judge to grant him joint legal custody. This requires the help of a lawyer.
Joint legal custody is the default legal position. Only under special circumstances can joint legal custody be shifted into sole legal custody. If there is joint legal custody and one of the parents believes that the other parent should no longer have legal custody, that parent can ask the judge to grant him or her sole legal custody. This requires the help of a lawyer.
In some cases, if youth care is involved, the Child Care and Protection Board or the Certified Institution can ask the court to take legal custody away from the parents altogether.
If legal custody isn’t in the hands of one of the parents, but is exercised by non-parent, it’s called ‘guardianship over a minor’.
Physical Custody also known as Visitation or Access
Physical custody, visitation and access are all about seeing the child. Parents who no longer live together will try to make arrangements about when the child stays with each parent. In most cases, the parents can reach a care arrangement on their own. Sometimes this requires additional help from, for example, a mediator.
If no arrangement has been reached, the parent who has an interest in the matter can take it to court. The court then decides where the child lives, their primary residence, and when they see the other parent. This can involve physical contact, as well as video calls, for example. The assistance of a lawyer is required to bring the matter to court.