Joint custody despite the issues between the parents

Supreme Court of the Netherlands

March 27 2020, ECLI:NL:HR:2020:533

The child will get trapped between the parents, so there can be no joint custody?

The mother is not given sole custody because she acts against the interests of the daughter by not offering the father any opportunity to be involved in the daughter’s life. The Court considers this decision to be justified, even if the so-called ‘trapped or lost criterion’ is met, because the child has been placed under the supervision of the child protection services. The Supreme Court does not consider this ruling to be contrary to art. 1: 251a paragraph 1 of the Dutch Civil Code. Therefore the Supreme Court chooses joint custody despite the issues between the parents

The court had rejected the mother’s request to get sole custody of the daughter. The Appeal Court had upheld this decision.

Parental alienation

Parental alienation The Child Protection Board had advised that the joint custody be maintained. The council believed that the situation in which the father was banned from the daughter’s life by the mother and in which parental alienation was created is created exclusively by the mother. The council did not expect the situation to improve in the short term. The mother only accepts the help she deems appropriate. In addition, the mother acts against the interests of the daughter by seeking out the media and publicity. The council was therefore very concerned about the daughter. Not about the daily care, but about her long-term personality development. The council even considered an out-of-home placement to break through the situation.

‘Trapped or lost’

The Appeal Court considered that there is an unacceptable risk of the daughter becoming trapped or lost between the parents without any improvement expected in the foreseeable future. However, the Appeal Court is of the opinion that it is in the interest of the daughter that the parents have joint custody. According to the Appeal Court, the mother grossly neglects her obligation to promote the development of ties between the daughter and her father. The Appeal Court is of the opinion that the mother acts so clearly against the interests of the daughter that it would be irresponsible for her to have sole custody over the daughter. The Appeal Court considers this decision to be justified, even if the so-called trapped or lost criterion is met, because the child has been placed under the supervision of the Child Protection Services.

Married or not

The Supreme Court believes that art. 1: 253c paragraph 2 of the Dutch Civil Code (obtaining sole custody by unmarried parents) and art. 1: 251 a paragraph 1 BW (sole custody after divorce) must be interpreted in the same way. In both situations joint authority is the starting point and sole custody is the exception.

The Supreme Court furthermore believes that a request to obtain joint custody can only be rejected on the two grounds mentioned (the trapped or lost criterion is met or rejection of the request is otherwise in the best interests of the child), but that it does not follow from this that it must be rejected if one of the conditions is met. Also for art. 1: 251 a paragraph 1 of the Civil Code applies that the court can grant custody to one of the parents in the event of a divorce if one of the grounds mentioned occurs. In both situations (the parents divorce / the parents were never married), the judge therefore has the space to maintain joint custody.

Family life

Finally, the Supreme Court points out that this explanation is in line with the principle that decisions of this kind should do as much justice as possible to the best interests of the child. In a case like this, where the custodial parent does not in any way provide the other parent with an opening to be involved in the child’s life, assigning joint custody is one of the tools that the judge should be able to use to realize the right to family life between the child and the other parent. While joint custody carries the risk of the child becoming trapped between the two parents, solecustody results in the other parent being completely excluded from the child’s life. Judging by the situation at the time of his decision, the judge must then have the space to estimate which of the two evils is likely to harm the child’s best interests least.

What does this mean for other parents?

This decision of the Dutch Supreme Court is important for parents battling parental alienation, because it means that parental alienation is not rewarded with sole custody. The court can choose to continue the joint custody despite the issues between the parents. The fact that a decision like this goes hand in hand with a supervision order is in the best interest of the child, since otherwise little improvement can be expected.