In a cross-border custody dispute the first question is never who should care for the child, but which court may decide. Within the European Union that is answered by the Brussels II ter Regulation, which since 1 August 2022 gives jurisdiction in matters of parental responsibility to the courts of the member state where the child is habitually resident. Outside the EU the 1996 Hague Child Protection Convention applies the same connecting factor. Once a Dutch court has jurisdiction it applies Dutch law, and the decisive standard under Dutch law is the interest of the child, assessed on the facts of the individual case.
Which court may decide
Habitual residence is a factual concept, not a matter of registration or nationality. It is the place where the child has the centre of their life: where the child actually lives, goes to school or nursery, has friends, receives medical care, and where the family has settled. A stay of a few weeks does not create it, and a move abroad by one parent does not change it by itself. Courts look at the reason for the move, its intended duration, the language and social integration of the child and the intentions of the parents who hold parental responsibility.
The Brussels II ter Regulation, formally Regulation (EU) 2019/1111, applies in all EU member states except Denmark and covers both divorce and parental responsibility. Its main rule gives jurisdiction to the courts of the member state of the habitual residence of the child at the time the court is seised. Around that rule sit a number of carefully limited exceptions. Where a child has lawfully moved to another member state, the courts of the former residence may keep jurisdiction for a limited period to modify an existing access decision. The parties can, in defined circumstances and where it is in the interest of the child, agree on the jurisdiction of a court with a substantial connection to the child. Where a habitual residence cannot be established, for example with refugee or displaced children, the courts of the state where the child is present have jurisdiction. And a court that is better placed may, exceptionally, be asked to take over the case.
For relations with states outside the European Union, the 1996 Hague Convention on the protection of children performs a similar function, allocating jurisdiction to the state of habitual residence and providing for recognition and enforcement between contracting states. Where neither instrument applies, Dutch rules of international jurisdiction take over, and a Dutch court can accept the case on the basis of the residence of the child or, in limited situations, of a party. Our article on which Dutch court has jurisdiction for international families works through those questions in sequence.
One point regularly causes avoidable damage: starting proceedings in the wrong country. A court seised second must in principle stay its proceedings in favour of the court seised first, so a badly chosen forum costs months and produces a decision that cannot be enforced. Establishing where the child is habitually resident, and therefore where to file, is worth doing properly before anything is submitted.
Which law the court applies
Under the 1996 Hague Convention an authority that has jurisdiction applies its own law. A Dutch court hearing a parental responsibility case therefore applies Dutch law to custody, contact and the arrangements for the child, even where the parents are foreign nationals and even where they married abroad. The nationality of the parents is not the connecting factor, which surprises many international families who expect the law of their home country to follow them.
There is a separate rule for parental responsibility that arises automatically. Whether a parent holds parental responsibility by operation of law, without any court decision, is governed by the law of the state of habitual residence of the child, and responsibility that exists under that law continues after a move to another country. This matters most for unmarried parents, because the law of the country the family left may have given the father parental responsibility automatically while Dutch law does not, or the reverse. Establishing who actually holds parental responsibility, and under which law it arose, is the first factual question in almost every cross-border file.
Custody and contact under Dutch law
Dutch law works with parental authority (gezag) rather than with custody in the common law sense. Parental authority covers the care and upbringing of the child, the legal representation of the child and the administration of the property of the child. Married parents and registered partners acquire it jointly at birth. For unmarried parents the position changed on 1 January 2023: acknowledgement of the child (erkenning) from that date onwards also creates joint parental authority automatically, whereas before that date the mother held sole authority unless the parents registered joint authority. Acknowledgements made before 2023 are not converted retroactively, so for older children the register of parental authority still has to be checked.
Divorce or separation does not end joint parental authority. It continues unless a court decides otherwise, which it will only do where there is an unacceptable risk that the child will become trapped between the parents and no improvement is expected, or where a change is otherwise necessary in the interest of the child. Parents who are married or who hold joint authority must file a parenting plan (ouderschapsplan) with the divorce petition, setting out the division of care, how they will inform and consult each other, and how the costs of the child will be met.
Where parents with joint authority cannot agree on a decision about the child, either of them can put the disagreement to the court, which decides in the way it considers to be in the interest of the child. That single provision is the route for most practical disputes: the school the child attends, medical treatment, a passport application, a holiday abroad, and relocation. A parent without parental authority is not left without rights; the child and that parent are entitled to contact with each other, and the court sets an arrangement unless one of the statutory grounds for refusing it applies, such as serious harm to the child. Our article on when child contact arrangements can be restricted sets out those grounds.
Children have a voice in the procedure. In family proceedings concerning them, children of twelve and older are given the opportunity to make their views known to the judge, in a short conversation without the parents present, and younger children may be heard where the judge considers it appropriate. The child does not decide, and the judge is not bound by what the child says, but in cross-border cases the view of an older child frequently carries real weight, particularly where a return or a relocation is at stake.
Moving abroad with a child
Relocation is where cross-border custody disputes usually start. A parent who holds joint parental authority may not move the child abroad, or to a different part of the Netherlands where this affects the arrangements, without the consent of the other parent. Consent should be recorded in writing. If the other parent refuses, the moving parent must ask the court for substitute consent before leaving; moving first and asking afterwards is the single most damaging step a parent can take in this area.
The court weighs all the circumstances and gives no automatic priority to either parent. Established elements of that assessment include the necessity of the move and the reasons for it, the extent to which the move has been thought through and prepared, whether alternatives have been considered, the age of the child and the degree to which the child is rooted in the current environment, the practical possibility of maintaining contact with the other parent and the arrangements offered to secure it, the division of the additional travel costs, the financial position of both parents, and the extent to which the parents are able to consult with each other. A well-prepared application with a concrete contact schedule, a costed travel arrangement and evidence about schooling in the new country is materially more likely to succeed than an application resting on the wish to move.
Two points are worth adding for international families. A passport application for a minor normally requires the consent of both holders of parental authority, and a refusal can be brought before the court. And a holiday abroad with the child likewise requires the consent of the other parent where authority is joint, which is why border officials increasingly ask for a signed consent letter. Our articles on moving abroad during your divorce and on co-parenting across borders deal with the practical arrangements in more detail.
When a child is wrongfully removed or retained
Taking a child abroad, or keeping the child abroad after a holiday, in breach of the parental authority of the other parent is international child abduction. The 1980 Hague Convention on the Civil Aspects of International Child Abduction provides the remedy, and its logic is deliberately narrow: the court in the country to which the child was taken does not decide who should have custody, but only whether the child must be returned to the country of habitual residence, so that the court there can decide the substance. The Convention applies to children under sixteen and only between contracting states.
The procedure is meant to be fast. The Convention sets a period of six weeks within which a decision should be reached, and the Brussels II ter Regulation tightens the timetable further for cases between EU member states, with separate six-week periods for the first instance court and for the appeal court. Where the application is made within one year of the wrongful removal or retention, the court orders the return. After a year, return is still the rule unless it is demonstrated that the child has become settled in the new environment.
Refusal is possible, but the grounds are limited and are applied restrictively. Return can be refused where the applicant was not actually exercising custody rights or consented to or acquiesced in the removal, where there is a grave risk that return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation, and where a child who has reached an age and degree of maturity at which it is appropriate to take account of their views objects to being returned. Between EU member states the harm exception is further narrowed: a court may not refuse return on that ground if it is established that adequate arrangements have been made to secure the protection of the child after return, and the court of the habitual residence retains the power, in defined circumstances, to take a subsequent decision requiring the return of the child.
In the Netherlands these cases are concentrated. Incoming applications are heard by the District Court of The Hague, with appeal to the Court of Appeal of The Hague, and an ordinary appeal in cassation to the Supreme Court against the return decision is in principle excluded, precisely to keep the procedure short. The Central Authority for International Child Affairs, part of the Ministry of Justice and Security, handles requests in both directions and can assist a parent whose child has been taken from or to the Netherlands. Cross-border mediation is offered alongside the proceedings and is often attempted in a compressed timeframe, because an agreed solution about schooling, contact and travel is generally better for the child than a contested return order. Our dedicated article on international child abduction sets out the steps for a parent who is facing one.
The criminal side
Abduction by a parent is also a criminal offence. Article 279 of the Dutch Criminal Code makes it an offence intentionally to withdraw a minor from the lawful authority exercised over them, with a maximum of six years imprisonment, rising to nine years where deceit, violence or the threat of violence was used or where the child is under twelve. Criminal proceedings run separately from the civil return procedure and pursue a different aim, and in many cases the priority for the left-behind parent is the return of the child rather than a prosecution. It is nevertheless a factor to weigh, including for the parent contemplating a move without consent, because the consequences reach beyond the family file.
Recognition and enforcement of decisions from another country
A custody or contact order is only as useful as its enforceability. Within the European Union, decisions in matters of parental responsibility given in one member state are recognised in the others without any special procedure, and under the Brussels II ter Regulation the requirement of a declaration of enforceability has been abolished, so a decision accompanied by the prescribed certificate can be enforced directly. Recognition can be refused only on limited grounds, including a manifest conflict with public policy taking into account the interest of the child, and a failure to give the child or a party the opportunity to be heard.
For decisions from states outside the EU, the 1996 Hague Convention provides for recognition and enforcement between contracting states through a declaration of enforceability, again with limited refusal grounds. Where no convention applies, a foreign decision has no automatic effect in the Netherlands and fresh proceedings before a Dutch court are usually necessary, which is one of the reasons why the choice of forum at the start of a dispute has consequences that last for years.
Enforcement itself is a matter for the law of the state where enforcement takes place. In the Netherlands a contact or handover arrangement can be reinforced with a penalty payment, and in serious cases with the assistance of the police, and a family supervision order can be requested where the conflict is damaging the development of the child. These are heavy instruments and courts use them cautiously, which again favours arrangements that both parents can actually live with.
What parents should do, and in what order
The sequence matters more than the arguments. Establish first who holds parental authority and under which law it arose, and obtain a recent extract from the register of parental authority if there is any doubt. Establish next where the child is habitually resident, on the facts rather than on the registration. Only then decide where to bring proceedings and what to ask for, because those two answers determine which court can help you and which decision will be enforceable.
If a move abroad is planned, ask for consent in writing and, if it is refused, apply for substitute consent before booking anything. Prepare the application as a proposal rather than as a demand: a school place, a contact schedule with dates, a division of the travel costs, and a mechanism for review. If you fear that the other parent will leave with the child, act immediately: interim relief proceedings can produce an order prohibiting departure, requiring the surrender of the passports of the child, and in urgent cases a registration to alert the authorities. Waiting until after departure converts a manageable dispute into an abduction case.
If a child has already been taken or is not returned, contact the Central Authority and a specialist lawyer within days rather than weeks. Keep the evidence of habitual residence: school registration, medical records, the tenancy or the mortgage, the correspondence about the trip and the return ticket. Do not sign anything that could be read as consent to the child remaining abroad, and take advice before travelling to the other country yourself. Above all, keep the communication about the child factual and in writing, because it will be read later.
Finally, treat mediation as a serious option rather than as a delay. Cross-border cases produce decisions that both parents have to operate for years across a distance, and an arrangement about school holidays, travel, video contact and the costs is far more durable when the parents designed it. Where agreement is impossible, the court decides, but the parent who has already shown a workable proposal is in a stronger position when it does. Our family law guides collect our articles on custody, contact and international families.
Frequently asked questions
What is a custody battle between countries?
A custody battle between countries occurs when parents or guardians disagree on child care, living arrangements, and parental responsibilities, particularly when those disputes involve different national jurisdictions.
How does Dutch law approach cross-border custody disputes?
Dutch law prioritises the welfare of the child and employs a comprehensive framework that incorporates international conventions, such as the Hague Convention, to address custody disputes effectively and empathetically.
What factors do Dutch courts consider in custody cases?
Dutch courts evaluate factors such as the child’s habitual residence, existing familial relationships, potential psychological impacts, and the overall stability of proposed living arrangements in determining custody arrangements.
How does the Hague Convention influence custody decisions in the Netherlands?
The Hague Convention establishes key principles for custody disputes, including the prioritisation of the child’s habitual residence and mechanisms for preventing international child abduction, which Dutch courts rigorously apply in their decision-making.
Law and More advises international families in the Netherlands on jurisdiction, parental authority, contact arrangements, relocation and child abduction, both for parents living here and for parents abroad whose child has a connection with the Netherlands. If your situation crosses a border, contact us early: in this area the first procedural choice usually determines what is still possible later.
