Are you considering relocating to another country with children following a breakup? Sophie Vermeule from GMW Lawyers explains the legal aspects of this process.
Sophie went on a recent trip to New York City and was reminded how tempting it can be to change course and live elsewhere. But what if your relationship ends and you decide that you want to move to the other side of the world with the children? Is it then also possible to just change course?
However understandable the desire of a parent to move abroad with the children after a divorce or when a relationship has ended is, an international couple should realise that this is not always possible.
Numbers
As more people cross international boundaries, more and more parents face abduction of their child. In the Netherlands, the number of reported cases in 2022 stands at 292 children, and in 2021 it was 229. The numbers of 2023 are not yet publicised.
The law
The Hague Convention on the Civil Aspects of International Child Abduction addresses the critical issue of child abduction across international borders.
In essence, the Convention seeks to safeguard children from wrongful removal or retention by ensuring their habitual residence and upholding parental rights. It provides a framework for cooperation between countries to facilitate the prompt return of abducted children to their habitual residence.
According to Article 3 of the Hague Convention, child abduction occurs when a child is removed or retained in violation of parental authority under the law of the State in which the child was habitually resident immediately before the removal or retention.
Under Dutch law, an international child abduction is also a criminal offence.
What to do as an expat when considering a move abroad?
When contemplating a move abroad with your child, there are important considerations to keep in mind:
- The child's best interest: Always prioritise your child's well-being. Assess whether the move aligns with their best interests.
- Joint parental authority: For expats, it is important to assess whether both parents have parental authority. If both parents have parental authority, the child can only move abroad with the other parent's consent. Unauthorised relocation without consent could be considered child abduction.
- Seek legal advice: The question of whether you and your partner both have parental authority can be difficult to determine. Therefore, it is advisable to seek legal advice at an early stage. An attorney at law can you help you clarify parental rights.
- Sole parental authority: If only one parent has sole parental authority and that parent decides to move abroad with the children, this will not be considered child abduction under the Hague Convention.
- Right to access: However, be aware that the other parent's right to access the child may still impact the relocating parent's freedom. According to the Dutch Supreme Court, an order to prevent the parent with sole parental authority from moving or an order to instruct that parent to move back, may be an appropriate measure, in case the right of contact between the non-relocating parent and the child is disturbed.
Thus, if you relocate abroad without the consent of the non-relocating parent, that parent has the option to initiate legal proceedings in the Netherlands. They can request the court that you return with the children.
Final words
Despite any temptations to act unilaterally, and to change course, it is advisable to always involve the other parent in decisions regarding relocation. As an international couple, having an open consultation and well-considered agreements are essential.
If you require specific advice regarding parental authority or have questions related to potential child abduction, feel free to reach out to Sophie Vermeule from GMW Lawyers. She will guide you through the necessary steps and provide informed advice.