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. In several cases, mediation or other social assistance may offer a solution, but termination of parental authority is a logical choice if that fails. 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. 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. 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.
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 latter will then have to hire his lawyer to apply to the court for permission.
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:
- 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.
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. When assessing the situation, the judge’s primary concern is whether the change is in the child’s interest. 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.
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.
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.
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.