FAQs from expat parents going through a divorce / separation
The law firm Franssen Advocaten in Amsterdam is specialised in (international) family law and Dutch and European immigration law. In addition to being a specialised attorney, Peggy Franssen is a divorce mediator who can help expat parents with difficult divorce procedures and the creation of a parental plan.
When you decide to split up and minor children are involved, you will encounter a lot of difficulties, especially if you and your partner are of different nationalities. Regularly, our law firm receives questions from clients who are going through this exact scenario. Frequently asked questions are:
- Am I allowed to move back to my home country with the children?
- After the divorce / separation, am I still allowed to live in the Netherlands?
Unfortunately, the answers to these questions are not always that simple. In order to find out what legal system applies and how to proceed, detailed information about all the circumstances is needed. However, generally, the following information applies:
Am I allowed to move back to my home country with the children?
Without the consent of the parent who is staying behind, moving your children abroad may be considered as international parental child abduction and can be a criminal offence. This depends on the legal position of the parents; whether they have joint custody or not. As long as they are still married, both parents will automatically have custody and can decide with whom the children will live after a divorce. If there is no agreement, the court will decide.
If you are not married, but have children together, then it is important to find out if the other parent has custody as well. If the other parent is not registered in the court’s national “gezagsregister” and the child is not Dutch, then foreign law may be applicable in order to determine whether this parent does have custody. The 1996 (or 1961) Hague Convention can be used to determine which law is applicable, if the child was a resident in one of the state members of this Convention at the time of his / her birth.
Moving without the consent of the other parent who has custody is not allowed, and the parent who is staying behind may commence judicial proceedings by filing a petition for the return of the child. Often, the child will be forced to return to the Netherlands after an intensive and stressful legal procedure. It is better to avoid this and try to get the consent of the other parent before you decide to move with your children.
If this is difficult to discuss with your (ex) partner, divorce mediation can be very helpful. During mediation, you will work towards reaching a settlement by means of a parental plan, in which the main place of residence and a visiting scheme with the other parent are determined.
After the divorce / separation, am I still allowed to live in the Netherlands?
Once you have decided to separate / divorce from your spouse, you may want to know if you are allowed to continue your legal stay in the Netherlands, especially if you are in possession of a dependent residence permit (to stay with partner/spouse), and you are financially dependent on your partner.
You are required to inform the IND if your relationship is over, you are living separately or if you get a divorce. But what about your residence permit? The IND will revoke this permit because your reason to stay in this country (to stay with your partner) no longer applies.
If you have children together, you will probably want to raise them together after the divorce / separation. To do so, you will need to sign a parental plan in which you determine with whom the children will stay, when they will stay with the other parent, how much you need to contribute to the children’s costs, and how to make decisions about the children.
If you would like to change your residence permit after a divorce / separation from your partner, the IND will require a signed parental plan. After receiving the plan, the IND will then decide if you are entitled to a new residence permit based on your family life with your children in the Netherlands (based on article 8 of the European Convention on Human Rights).
If you cannot come to an agreement regarding the parental plan, you can go to a divorce mediator or attorney specialised in family law. If necessary, you can request that the court determines with whom the children will live and what visiting scheme is in their best interest.
If there is no signed parental plan, the IND will require a court’s verdict about the provisions for the children. So, fortunately, there are options that will enable you to remain in the country after divorce.
Peggy Franssen always advises clients to contact a specialised attorney in international family law and immigration, such as Franssen Advocaten, when dealing with such matters. This boutique law firm deals with these issues frequently and has a lot of experience in assisting expats in divorce situations.
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