Can my ex-partner decide to relocate with our children? A judicial prohibition to relocate and a court order to move back further explained.

After a divorce, one or both parents may have a strong desire to move with the children. This could be because of a new job, new partner or other reason. However, this is not something that can be done overnight. In this blog I explain what is legally possible to prevent a planned relocation without the consent of the other parent or to turn back a relocation that has already taken place.

Can my ex-partner decide to relocate with our children?

In my previous blog on relocation issues, I explained the circumstances under which a parent needs permission from the other parent to move with the children. In short, when there is joint parental authority, moving with the children requires the permission of the other parent or substitute permission from a judge.

Criteria for moving cases

If permission from the other parent is not given, this permission can be replaced by the permission of a judge. When a Dutch court has to decide on a relocation issue, the judge will do this on the basis of the criteria that were developed in case law. The judge will assess the submitted case based on the following criteria:

• The need to move (social or economic);
• The extent to which the move has been thought through and prepared;
• The alternatives and measures offered by the moving parent to mitigate and/or compensate for the consequences of the move for the minor(s) and the other parent;
• The extent to which the parents are able to communicate and consult with each other;
• The rights of the other parent and the minor(s) to undiminished contact with each other in their familiar environment;
• The current division of care and responsibilities and continuity of that care;
• The frequency of contact between the minor(s) and the other parent before and after the move;
• The age of the minor(s), his/her opinion and the extent to which the minor(s) is/are rooted in his/her environment or is extra used to moving;
• The (extra) costs of the care arrangement after the move.

In testing the above criteria, the judge will make a decision that is most desirable in the best interest of the involved minor(s). Case law shows that these kinds of cases are casuistic and that it is therefore not possible to indicate in general when permission is given or not.

Maximum distance between divorced parents

The permission of the other parent is not needed for every type of move. In principle, it should be a relocation that has an impact on the way in which the parents exercise their joint parental authority. A move within the place of residence or at a small distance from the old place of residence, which does not change the care arrangement and, for example, the day care or school for the children, is often considered to be allowed without permission of the other parent.

Based on case law it is not possible to state what the maximum distance is in which a move may or may not take place without permission. This has to be judged on a case by case basis and depends on many factors such as the age of the children, the division of the care, any agreements in the parenting plan and so on.

Consultation in good time in case of a desire to move

If you are the parent who does not want the children to relocate with your ex-partner, it is important to make this known to your ex-partner in a timely and clear manner. Explain to him/her that a move is not something that can be done without consent. A lawyer or mediator can help you with this. The same applies if you are the parent who wants to move.

Preventing your ex-partner from relocating with the children

If you are not able to come to an agreement regarding the relocation issue and you are afraid that your ex-partner will still proceed with the move, you can start legal proceedings yourself with the help of a lawyer. In these proceedings you can ask the court to impose a ban on the move. You will have to make it plausible that your ex-partner actually intends to move and you fear that this will happen without your permission or without asking the court for substitute permission.

An injunction against moving outside a certain place of residence or only within a certain radius from a place of residence can be imposed by the court at the request of one of the parents. See, for example a case of the Court of Appeal Arnhem-Leeuwarden of 9 February 2016, ECLI:NL:GHARL:2016:936 and of the Court of Appeal ’s-Hertogenbosch of 30 August 2018, ECLI:NL:GHSHE:2018:3641.

Obligatory relocation in the child’s best interests

But what if your ex-partner’s move with the children has already taken place without your permission or the permission of the court? In that case, it is important to start a legal procedure as soon as possible requesting the judge to issue a relocation order.

The reason why this has to be done as soon as possible is because case law shows that if the other parent has been living with the children in the new place of residence for a longer period of time, a judge might rule that the children are already rooted in their new environment. A move back to the previous place of residence may then - under certain circumstances - not be in the best interest of the children. As a result, despite the fact that no permission from the other parent or substitute permission from the court was given for the move - and thus in violation of joint custody - the move is upheld.

Some examples of cases in which the lapse of time was of importance when answering whether a move back was in the best interest of the children are the judgments of the Court of Appeal of The Hague of 6 September 2017, ECLI:NL: GHDHA:2017:2795, the Court of Appeal of The Hague of 16 May 2018, ECLI:NL:GHDHA:2018:1158, the District Court of Rotterdam of 21 February 2018, ECLI:NL:RBROT:2018:10122 and the Court of Appeal of ’s-Hertogenbosch of 7 November 2019, ECLI:NL:GHSHE:2019:4094.

Need advice on a relocation issue?

If you would like to know exactly what your situation is and what (legal) possibilities you have, please contact me to discuss if I can be of further assistance to you.