If the father cannot care for and raise a child, or a child is seriously threatened in his development, termination of parental authority may follow. This process is also referred to as deprivation of parental authority and is a legal measure imposed by the court. In several cases, mediation or other social assistance may offer a solution, but termination of parental authority is a logical choice if that fails. There are specific legal grounds for deprivation of parental authority, which will be discussed in this article. Under what conditions can the father’s custody be terminated? Before we can answer this question, we need to know precisely what parental authority is and what it entails.
What is parental authority?
When you have custody of a child, you can make important decisions affecting the child. These include, for example, the choice of school and decisions on care and upbringing. Parental authority covers both the child’s person and property, meaning parents are responsible for the child’s well-being as well as managing the child’s property and assets. Up to a certain age, you are also liable for any damage caused by your child. With joint custody, both parents are in charge of raising and caring for the child. The two parents act jointly in exercising parental authority and making important decisions for the child’s person and property. If only one of the parents has custody, we speak of sole custody.
When a child is born, the mother automatically has custody of the child. If the mother is married or in a registered partnership, the father also has custody from birth. The father does not have automatic custody in cases where the parents are not married or in a registered partnership. The father must then request this with the mother’s consent. Parental authority includes managing the child’s property and representing the child’s interests until the child reaches the age of majority.
Note: Parental custody is separate from whether the father has acknowledged the child. There is often a lot of confusion about this. See our other blog, ‘Acknowledgement and parental authority: the differences explained,’ for this.
Refusing parental authority father
If the mother does not want the father to obtain custody of the child through consent, the mother can refuse to grant such consent. In this case, the father can only get custody through the courts. The district court is responsible for matters relating to parental authority, including cases arising from divorce.
The latter will then have to hire his lawyer to apply to the court for permission. The court will decide on the application in accordance with civil procedure, and the outcome will be a formal court decision.
Note! On Tuesday, 22 March 2022, the Senate approved the bill allowing unmarried partners to have legal joint custody upon recognizing their child. Unmarried and unregistered partners will automatically be in charge of joint custody upon recognizing the child when this law comes into force. However, this law has not come into force so far.
When does parental authority end?
Parental authority ends in the following cases, with the possibility of parental authority ending under specific legal circumstances:
When the child has reached the age of 18. The child is thus officially an adult and may make important decisions himself;
If the child enters the marriage before turning 18. This requires special permission as the child becomes of age before the law through marriage;
When a 16- or a 17-year-old child becomes a single mother, and the court honors an application to declare her of age.
By a discharge or disqualification from parental custody of one or more children.
Parental authority may no longer exist if both parents are deceased. In such cases, a guardian or the surviving parent may be appointed by the court to exercise parental authority.
Depriving father of parental authority
Does the mother want to take away the father’s custody? If so, a petition procedure should be initiated with the court to this end. In matters relating to deprivation of parental authority, the court may act on its own motion or at the request of an interested party. When assessing the situation, the judge’s primary concern is whether the change is in the child’s interest. The court will decide based on the legal grounds for deprivation of parental authority, and the outcome is a formal court decision. In principle, the judge uses the so-called “clamping criterion” for this purpose. The judge has a lot of freedom to weigh up interests. The test of the criterion consists of two parts:
There is an unacceptable risk of the child being trapped or lost between the parents and it is not expected that this would improve sufficiently in the foreseeable future, or modification of custody is otherwise necessary in the best interests of the child.
In principle, this measure is only resorted to in situations that are very harmful to the child. This may include one or more of the following behaviors:
Harmful/criminal behavior towards or in the presence of the child;
Harmful/criminal behavior at ex-partner level. Behavior that ensures that the other custodial parent cannot reasonably be expected (any longer) to engage in consultation with the harmful parent;
Delaying or (unmotivated) blocking decisions crucial to the child. Being unreachable for consultation or ‘untraceable’;
Behaviour that forces the child into a loyalty conflict;
Refusal of assistance for parents among themselves and/or for the child.
Deprivation of parental authority may result in the appointment of a guardian or the transfer of guardianship if neither parent is able to exercise parental authority. It is important to respect the child’s place of residence and the rights of the child’s parents when making decisions about deprivation of parental authority.
Deprivation of parental authority affects the ability of the parent to continue exercising parental authority over the child.
Impact on Minor Children
Decisions regarding parental authority have a profound impact on minor children, shaping not only their daily routines but also their long-term development and well-being. When both parents exercise joint parental authority, they are jointly responsible for making important decisions about the child’s upbringing, education, and health. This collaborative approach is generally considered to be in the best interests of the child, as it allows both parents to contribute to the child’s growth and stability.
However, when one parent is deprived of parental authority, the other parent may be granted sole custody. This shift can lead to significant changes in the child’s living arrangements, daily care, and the nature of their contact with the non-custodial parent. The court carefully evaluates the circumstances to ensure that any decision made serves the interests of the child, taking into account factors such as the child’s age, health, emotional bonds, and the ability of each parent to provide a safe and supportive environment.
In exceptional circumstances, such as concerns about international child abduction or other serious risks to the child’s safety, the court may impose additional safeguards or restrictions. The overriding principle in all cases is the best interests of the child, ensuring that their welfare, education, and emotional security are prioritized above all else. The court’s decision may also affect the child’s access to both parents, with the aim of minimizing disruption and promoting a stable upbringing whenever possible.
Role of the Other Parent
The involvement of the other parent remains a key consideration in matters of parental authority, even when sole custody is granted to one parent. The law recognizes that, in most cases, it is beneficial for minor children to maintain meaningful relationships with both parents. As such, the non-custodial parent often retains specific duties and rights, such as the obligation to provide financial support and the opportunity to maintain regular contact with the child.
The court may establish a custody arrangement that ensures the child continues to benefit from the guidance and presence of both parents, unless there are compelling reasons to limit or restrict such contact. In situations where the other parent is unable or unfit to exercise parental authority—due to health, behavior, or other circumstances—the court may appoint a guardian or grant custody to a third party, such as a relative or foster parent, to safeguard the interests of the child.
Throughout these proceedings, the court is guided by the principle of the best interests of the child, carefully considering the unique circumstances of each family. The goal is to establish an arrangement that supports the child’s upbringing, education, and emotional well-being, while respecting the rights and responsibilities of both parents. By doing so, the court aims to provide stability and continuity for the child, even in the face of significant changes to parental authority.
Is termination of custody final?
Termination of custody usually is final and does not involve a temporary measure. But if circumstances have changed, the father who has lost custody can ask the court to “restore” his custody. Of course, the father must then demonstrate that, in the meantime, he is able to bear (permanently) the responsibility for care and upbringing.
Jurisdiction
In case law, it is rare for the father to be deprived or denied parental authority. Poor communication between the parents no longer seems decisive. We also increasingly see that even when there is no more contact between the child and the other parent, the judge still maintains parental authority; so as not to cut this ‘last tie.’ If the father complies with normal manners and is willing and available for consultation, a request for sole custody has little chance of success. If, on the other hand, there is sufficient evidence against the father regarding harmful events showing that joint parental responsibility is not working, then a request is a lot more successful.
Conclusion
A bad relationship between parents is not enough to deprive the father of parental authority. A custody modification is obvious if there is a situation where the children are trapped or lost between the parents, and there is no improvement in this in the short term.
If a mother wants a custody modification, it is essential how she initiates these proceedings. The judge will also look at her input into the situation and what actions she has taken to make parental authority work.
Do you have any questions as a result of this article? If so, please get in touch with our family lawyers without any obligation. We will be happy to advise and guide you.