International families: which court decides on children?

A Dutch court can decide about your child if the child is habitually resident in the Netherlands on the day the petition is filed. That rule comes from Regulation (EU) 2019/1111 (Brussels IIb), which applies to proceedings started on or after 1 August 2022. The main exceptions: parents can agree in writing on a Dutch court if the child has a substantial connection with the Netherlands, and a Dutch court can take urgent protective measures for a child who is here. Dutch nationality alone does not give a Dutch court jurisdiction over a child living abroad.

Jurisdiction over the divorce and over maintenance follows separate rules, so two courts in two countries can deal with one family at the same time. Below we explain which rules apply to which question, which Dutch court you go to and how decisions cross borders.

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Table of contents

What does habitual residence mean?

Habitual residence is a question of fact: the place where the child has some degree of integration in a social and family environment. Courts look at how long the child has lived here, the reason for the stay, school, language, medical registration, family and friends, and the parents’ intentions when they moved.

Registration in the Personal Records Database (Basisregistratie Personen, BRP) is evidence, not proof. The relevant moment is the day the court is seised, which in Dutch family proceedings is the day the petition is filed. A later move does not remove jurisdiction for the pending proceedings.

If habitual residence cannot be established, for example for a family that has just arrived, the court of the EU member state where the child is present can take jurisdiction. In relation to non-EU states that are party to it, the 1996 Hague Child Protection Convention uses the same habitual-residence test.

When can a Dutch court act if the child lives elsewhere?

Only through three narrow routes. None of them allows a parent to choose a Dutch court simply because it suits them.

Choice of court: parents can agree on a court of a member state with which the child has a substantial connection, for example because a parent lives there or the child is a national. The agreement must be in writing at the latest when the court is seised, and must be in the child’s best interests.
Urgency: a Dutch court can take provisional or protective measures for a child present in the Netherlands, for example through the preliminary relief judge (voorzieningenrechter). These measures lapse once the competent court has acted.
Transfer: a competent court can transfer the case to a better-placed court in another member state, or request a transfer, under Articles 12 and 13 of the Regulation. In the Netherlands such transfers run through the court designated in the Child Protection Implementation Act (Uitvoeringswet internationale kinderbescherming).

After a lawful move abroad, the courts of the former country keep jurisdiction for three months only to modify an existing access arrangement.

Which court decides on the divorce?

Divorce jurisdiction is governed by Articles 3 to 5 of the same Regulation; Article 4 of the Dutch Code of Civil Procedure (Rv) refers to them. The grounds are alternatives: a Dutch court can hear the divorce if, among others, both spouses live here, the respondent lives here, or the applicant has lived here for at least a year before filing, or for six months if he or she is a Dutch national.

Several courts can therefore be competent at the same time. The court seised second must stay its proceedings and decline once the first court has established jurisdiction (lis pendens). That is why the filing date often matters more than the merits at this stage of an international divorce.

The Netherlands does not take part in the Rome III Regulation. A Dutch court applies Dutch divorce law, unless the spouses have chosen the law of a common foreign nationality (Article 10:56 of the Dutch Civil Code, BW).

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Which court decides on maintenance?

Child and spousal maintenance fall outside Brussels IIb and are governed by the Maintenance Regulation (Regulation (EC) No 4/2009). It gives jurisdiction to the court where the maintenance creditor or the defendant is habitually resident, and to the court handling the divorce or parental responsibility when maintenance is an ancillary claim.

The applicable law follows the 2007 Hague Protocol, which in principle points to the law of the creditor’s habitual residence. A Dutch court can therefore decide the divorce and the care arrangements while a foreign court sets the maintenance.

Which Dutch court handles the case?

Once the Netherlands has jurisdiction, petitions concerning minors go to the district court of the place where the child lives or, failing a residence in the Netherlands, actually stays (Article 265 Rv). The court checks its own jurisdiction of its own motion before it looks at the merits.

International child abduction cases under the 1980 Hague Convention are concentrated at the District Court of The Hague, with appeal to the Court of Appeal in The Hague within two weeks; no ordinary remedy lies against the appeal decision. More on this in our article on international child abduction.

What will a Dutch court decide about the children?

Spouses with minor children who divorce must file a parenting plan (ouderschapsplan) signed by both of them with the petition (Article 815 Rv). It covers the division of care, how the parents inform and consult each other, and the costs of the children. See our page on the parenting plan.

Joint parental authority continues after divorce. The court only grants sole authority if there is an unacceptable risk that the child will be caught or lost between the parents without prospect of improvement, or if it is otherwise necessary in the child’s interest (Article 1:251a BW). With joint parental authority, a move abroad needs the other parent’s consent or court permission.

Children aged twelve or older are given the opportunity to give their views; younger children may be heard in a way the court decides (Article 809 Rv). For maintenance of children under sixteen this hearing is not required.

How are decisions recognised in other countries?

Within the EU, decisions on divorce and parental responsibility are recognised without a special procedure, and no declaration of enforceability is needed. You need the decision, a translation where required and the certificate issued by the court of origin; enforcement follows the law of the country where it takes place.

Recognition can be refused only on narrow grounds, such as manifest conflict with public policy, a default decision without timely service, or failure to give the child an opportunity to be heard. Decisions from non-EU states are recognised under a treaty or, absent one, if the foreign court had an internationally acceptable ground of jurisdiction, the proceedings were fair and recognition does not conflict with Dutch public policy. See our articles on recognition and enforcement of foreign judgments and recognition of foreign divorces.

What should you check as the parent living in the Netherlands?

Since when the child has lived here, and evidence of school, GP, housing and BRP registration.
Whether proceedings are already pending abroad, and on which date they were filed.
Whether a written choice of a Dutch court is still possible before filing.
Whether a parenting plan has been agreed and signed for the divorce petition.
Whether foreign certificates need an apostille or legalisation and a sworn translation.

What should you check as the parent living abroad?

Where the child was habitually resident on the day the first petition was filed.
Whether you agreed in writing to a Dutch court, or can contest jurisdiction.
Whether filing first in your own country is possible and sensible (lis pendens).
Which court is competent for maintenance under the Maintenance Regulation.
How a Dutch decision will be recognised and enforced where you live.

What can we do for you with jurisdiction in international family cases?

Our family lawyers advise international families before and during proceedings.

We assess which court is competent for divorce, children and maintenance before anything is filed.
We draft a written choice-of-court agreement and a parenting plan.
We file the petition with the competent Dutch district court or contest jurisdiction.
We request urgent protective measures from the preliminary relief judge.
We arrange recognition and enforcement of Dutch or foreign decisions, working with lawyers abroad.

Summary

Jurisdiction over a child depends on habitual residence on the filing date (Brussels IIb, since 1 August 2022).
Exceptions: a written choice of court, urgent measures and transfer between courts.
Divorce and maintenance have their own jurisdiction rules; the first court seised has priority.
A Dutch court applies Dutch divorce law unless a common foreign nationality law is chosen (Article 10:56 BW).
EU decisions are recognised without special procedure; non-EU decisions under stricter conditions.

Frequently asked questions

When does a Dutch court have jurisdiction over my child?

In principle when the child is habitually resident in the Netherlands on the day the petition is filed (Brussels IIb Regulation). Exceptions are a written choice of court, urgent protective measures and a transfer of the case between courts.

Does Dutch nationality give a Dutch court jurisdiction over my child abroad?

No. Nationality alone is not enough. For a child habitually resident in another EU country, the courts there are competent unless the parents validly agreed in writing on a Dutch court.

Can the divorce and the children be dealt with in different countries?

Yes. Divorce jurisdiction follows Articles 3 to 5 of the Regulation, jurisdiction over children follows habitual residence, and maintenance follows the Maintenance Regulation. Different courts can therefore be competent.

Which law does a Dutch court apply to the divorce?

Dutch law, unless the spouses chose the law of a common foreign nationality (Article 10:56 BW). The Netherlands does not take part in the Rome III Regulation.

Is a Dutch custody decision recognised in other EU countries?

Yes, without a special procedure and without a declaration of enforceability. You need the decision, the certificate from the Dutch court and a translation where required. Refusal is only possible on narrow grounds.