On 15 October 2021, the Supreme Court ruled that even in cases of sole custody, there is a basis to restrict the custodial parent’s freedom of choice regarding the child’s place of residence.
In March/April 2019, mother moved abroad with the parties’ daughter. Mother had sole custody of daughter at that time. The court charges father with custody and determines that mother must move back. The court sets aside the court’s order as regards the order to move back. The court considered that at the time of the move, mother had sole custody of daughter and therefore had the power to determine daughter’s place of residence herself.
However, the Supreme Court ruled that even in cases of sole custody, there is a basis for limiting the freedom of choice of the custodial parent regarding the child’s place of residence. Such a basis exists when the parent with custody does not fulfil the obligation to promote contact between the child and the other parent (article 1:247 paragraph 3 BW). Pursuant to Article 8 ECHR, in such a case the court is obliged to take all measures appropriate to the case to induce the custodial parent to still cooperate in promoting contact between the child and the other parent. Prohibiting the parent with custody from moving, or ordering that parent to move back, may then be an appropriate measure. The Supreme Court also noted that an order to move back is less drastic than awarding sole custody to the other parent.
Mother left abroad without any notice. She did not provide any information about daughter’s whereabouts, thus preventing contact between father and daughter. Mother thus did not fulfil the obligation to promote contact between daughter and father. The Supreme Court set aside the court’s order and referred the case back to the court for further consideration and decision.
For advice and/or if you have any questions, please contact the staff of the Law of Persons and Family Law Practice Group.