ການຍ້າຍໄປຢູ່ຕ່າງປະເທດໃນລະຫວ່າງການຢ່າຮ້າງ: ສິ່ງທີ່ກົດໝາຍໂຮນລັງອະນຸຍາດໃຫ້ມີລູກ

Moving abroad with your children during or after a divorce is only lawful if the other parent with parental authority gives written consent, or the court grants substitute consent (vervangende toestemming) under Article 1:253a of the Dutch Civil Code (BW). With joint authority, the child’s country of residence is a joint decision. A move without consent or a court order is international child abduction, with return proceedings and possible prosecution under Article 279 of the Dutch Criminal Code (Sr).

The rule applies whether you were married, registered partners or unmarried with joint authority. Moving abroad yourself, without the children, is your own decision, but it affects contact, maintenance and the division of property.

ໃຜເປັນຜູ້ຕັດສິນໃຈວ່າເດັກຢູ່ໃສ?

Under Dutch law joint parental authority (gezamenlijk gezag) normally continues after divorce, under Article 1:247(4) BW. Both parents then decide together on major issues, and moving the child to another country is one of the most important.

If you have sole authority, you may in principle decide on the child’s residence yourself. But Article 1:247(3) BW obliges every parent with authority to promote the child’s ties with the other parent, and the child and the other parent have a right to contact under Article 1:377a BW. A move that defeats an existing contact arrangement can be challenged in court.

Agreement in writing is essential. A verbal “yes” can be denied later and gives you no protection. Record the agreement in an updated ແຜນການລ້ຽງດູພໍ່ແມ່ or a written statement with the destination and the arrangements for contact.

How does the court decide on substitute consent?

If the other parent refuses, you can ask the district court for substitute consent under Article 1:253a BW. The court decides in the interest of the child, and weighs all circumstances of the case against each other.

In practice the court looks at:

• the necessity of the move, for example a concrete job offer or a return to a family support network;
• how well the move has been prepared: housing, school, work, healthcare;
• the consequences for the child and its contact with the parent who stays behind;
• whether the contact arrangement after the move is realistic and who pays the travel costs;
• the child’s views; from twelve the court must offer the child a hearing (Article 809 of the Code of Civil Procedure, Rv);
• whether the move can be made gradually, for example at the end of a school year.

Your relocation plan is your main evidence. Provide a signed employment contract, a place at a named school, a lease and a detailed contact schedule. A general wish for a fresh start is not enough. Our article on ການລ້ຽງລູກຮ່ວມກັນຂ້າມຊາຍແດນ sets out what such a plan needs.

How long the procedure takes depends on the court and on whether the Child Protection Board (Raad voor de Kinderbescherming) is asked to investigate under Article 810 Rv. Start well before the intended moving date; a decision can take several months, and longer if an investigation is ordered.

What happens if you move without consent?

The other parent can apply for return of the child under the Hague Convention on the Civil Aspects of International Child Abduction. Under that Convention the court in the destination country generally orders the child’s return to the country of habitual residence, without deciding the custody dispute itself.

If a child is taken to or kept in the Netherlands unlawfully, Article 11 of the Dutch implementing act (Uitvoeringswet internationale kinderontvoering) gives the juvenile judge of the District Court of The Hague exclusive jurisdiction at first instance. The Dutch Central Authority for international child matters, part of the Ministry of Justice and Security, handles applications. See our article on ການລັກພາຕົວເດັກສາກົນ.

Taking a child abroad without the other parent’s consent can also be a criminal offence. Under Article 279(1) Sr intentionally removing a minor from lawful authority is punishable by up to six years’ imprisonment, and up to nine years if the child is under twelve or force or deception is used (Article 279(2) Sr). Courts also take such conduct into account in later decisions on authority and contact.

What about holidays abroad?

With joint authority you need the other parent’s consent for a trip abroad with the child, especially if there is a dispute. Ask for written consent stating the destination and dates.

If the other parent refuses unreasonably, you can ask the court for substitute consent for that specific trip. Not returning after an approved holiday is wrongful retention and can lead to return proceedings. See our article on ວັນພັກກັບເດັກນ້ອຍຫຼັງຈາກການຢ່າຮ້າງ.

How does moving abroad affect maintenance and property?

A move abroad does not end your financial obligations. Within the EU, the EU Maintenance Regulation governs jurisdiction and enforcement of maintenance decisions, and outside the EU the 2007 Hague Maintenance Convention does so for the states that have joined it. Our guide to ເງິນອຸດໜູນລ້ຽງດູໃນປະເທດເນເທີແລນ explains how the amount is calculated.

A Dutch maintenance decision can usually be enforced in another EU member state without new proceedings on the merits. In countries outside these instruments, enforcement may require proceedings before the local court. A move can also change the court’s assessment of income and needs, so provide evidence of salary and living costs in the new country.

Which law governs the division of your matrimonial property depends on when you married and on your connections with each country, not simply on where the divorce is filed. Selling a Dutch home from abroad requires powers of attorney and coordination with the notary. Read more in our article on ການຢ່າຮ້າງລະຫວ່າງປະເທດໃນເນເທີແລນ.

ໃນຖານະພໍ່ແມ່ທີ່ຕ້ອງການຍ້າຍອອກ, ເຈົ້າຄວນກວດສອບຫຍັງແດ່?

• Check whether you have joint or sole authority; with joint authority you need consent or a court decision.
• Ask the other parent for written consent, with a concrete proposal for contact and travel costs.
• Collect evidence: employment contract, school place, lease, healthcare registration.
• Draft a detailed contact schedule including holidays, video calls and who pays for travel.
• File the request for substitute consent well before your intended moving date.
• Do not move before you have written consent or a court decision.

What should you check as the parent who stays behind?

• Check what the parenting plan or court decision says about residence and contact.
• Put your objections and concerns about the plan in writing, with concrete reasons.
• Assess whether the proposed contact schedule and cost division are realistic.
• Ask the court for a hearing of the child or a Child Protection Board investigation if the child’s interests are unclear.
• If the child has been taken abroad without consent, contact the Central Authority and a lawyer immediately: a return application is most effective when filed quickly.

What can we do for you with a move abroad during divorce?

ຂອງ​ພວກ​ເຮົາ ທະນາຍຄວາມຢ່າຮ້າງ ແລະ ທະນາຍຄວາມຂອງຄອບຄົວ advise international parents on relocation and cross-border arrangements. More on authority is in our guide to ການຊ່ວຍເຫຼືອທາງດ້ານກົດໝາຍສຳລັບບັນຫາອຳນາດຂອງພໍ່ແມ່.

• We assess whether your planned move needs consent and what your chances are in court.
• We draft the relocation plan and the written agreement with the other parent.
• We file and argue the request for substitute consent under Article 1:253a BW, or the defence against it.
• We draft a cross-border contact and maintenance arrangement.
• We act in Hague Convention return proceedings before the District Court of The Hague.

Summary

• With joint authority, moving abroad with your child requires the other parent’s written consent or substitute consent from the court (Article 1:253a BW).
• Sole authority does not remove the duty to promote the child’s ties with the other parent (Article 1:247(3) BW).
• The court weighs the necessity and preparation of the move against the child’s contact with the other parent.
• A move without consent leads to Hague Convention return proceedings and can be a criminal offence (Article 279 Sr).
• Maintenance decisions remain enforceable across borders under EU and Hague instruments.

ຄໍາ​ຖາມ​ທີ່​ຖືກ​ຖາມ​ເລື້ອຍໆ