Substitute Consent of the Judge for Child
Substitute consent judge child concerns a legal step in which a judge makes a decision regarding a child when parents cannot agree. This often occurs after a divorce, for example in issues such as relocation or school choice. The judge always places the best interests of the child at the center.
When is this consent required?
In the Netherlands, parents with joint custody share responsibility for important choices about their child, as laid down in Article 1:251 of the Dutch Civil Code (BW). This includes decisions about residence, education, medical care, and upbringing. If one parent does not consent, substitute consent can be requested from the court.
This often arises after a divorce, for example if one parent blocks a relocation due to its impact on the visitation arrangement. Without agreement from both parties, a decision may not be implemented, otherwise one risks legal consequences.
Legal Basis
The basis lies in Book 1 of the Dutch Civil Code:
- Art. 1:251 BW: Joint custody requires consultation on major decisions. In case of disagreement, the judge decides.
- Art. 1:257 BW: In disputes over residence, the judge may award sole custody or adjust the situation.
- Art. 1:377 BW: For children under guardianship, similar rules apply via the sub-district court.
The judge uses the best interests of the child as a guiding principle (UN Convention on the Rights of the Child, art. 3). Recent rulings by the Supreme Court emphasize that a refusal must be well-substantiated.
Steps in the Procedure
- Start with mediation: In divorce conflicts, mediation is often mandatory (Mediation Promotion Act).
- File a petition: Explain the situation, emphasize the child's best interests, and attach evidence (e.g., co-parenting agreement).
- Application to the court: Submit the request to the family law section of the District Court of The Hague (Westland district). Court fee: €86 (2024) for individual cases.
- Hearing: Both parents are heard, sometimes also the child (from age 12). The Child Protection Board may advise.
- Judgment: Within a few weeks to months, immediately enforceable unless suspended.
Tip: Consult a family law attorney in Westland for assistance in drafting the petition.
Concrete Situations
Situation 1: Relocation after divorce
A parent from Westland wants to move to Rotterdam for work, but the other parent refuses due to the distance. The judge may grant consent if the relocation benefits the child, with an adjusted visitation arrangement.
Situation 2: Education issue
Parents disagree on school choice: one wants a special education form, the other does not. The judge decides based on location and the child itself.
Situation 3: Medical care
If a child needs treatment and one parent refuses, the judge may grant consent in case of medical necessity.
Rights and Responsibilities
| Requesting Parent | Opposing Party | Judge |
|---|---|---|
| Right to hearing and presentation of evidence | Right to defense and input | Decides based on child's best interests |
| Obligation: Consult first | Obligation: Reasonable grounds for refusal | Obligation: Substantiate the decision |
| Right to appeal (art. 1:258 BW) | Right to cost reimbursement for unjustified blockage | Must hear the child if relevant |
Unreasonable refusal may lead to adjustment of custody or restriction of visitation.
Frequently Asked Questions in Westland
Can I get consent for an international relocation?
Yes, but the criteria are stricter. The judge assesses the impact on visitation and the child's well-being. A good visitation arrangement (e.g., holiday agreements) increases the chance of approval.
What if the other parent does not respond?
The judge may issue a judgment without defense, but the child's best interests remain leading.
What is the duration of such a procedure in Westland?
Usually 2-6 months, faster in urgent cases via summary proceedings. Contact the Juridisch Loket Westland for more information.