What is authority?

In the Netherlands, if a person is still a minor - that is, this person has not yet reached the age of 18 - that person is under custody. Generally, the parents exercise authority over a minor. If a person other than the parent(s) exercises custody, it is called guardianship.

If parents are married to each other or entered into a registered partnership, they would automatically have custody of a child that is born. However, the father must acknowledge the child to do so. Women who are married to each other or in a registered partnership also automatically have custody of their children. This does not apply to men.

Having custody of children entails rights and duties for the parent(s). This applies to parental custody, joint custody (for example, a parent with a non-parent) and joint custody (if the child no longer has parents). If someone has custody of a minor, this person is responsible for the care and upbringing of the minor.

The person with custody is also the child's legal representative, that is, the person with custody represents the minor in and out of court. There is therefore legal liability for actions of the minor.

Any person who has reached the age of 18, is not under guardianship or suffering from a mental disorder is authorized to exercise authority and/or guardianship. Once a person reaches the age of 18, the authority and/or guardianship over that person ends. Also, if a person marries before reaching the age of 18, the authority and/or guardianship ends. By entering into a marriage, that person automatically becomes an adult.

What is guardianship?

Guardianship can be defined as custody of a minor child that is not exercised by the parent(s) but by someone else. If a parent is no longer able to care for or raise the minor child, then custody is transferred to a guardian. This may be the case, for example, if the last parent dies before the child reaches the age of majority.

Having a guardianship arrangement drawn up is important for the following reasons:

• As a parent, you have influence over your children's care after your death
• You prevent the judge from having to make a decision about custody. Your choice does not have to be the judge's choice
• You avoid discussion between family, child welfare and judge.

You can arrange for custody of your child in two ways:

1. You designate someone through the register of custody of the court
2. You include a guardianship arrangement in your will

A guardianship arrangement is usually included in a will, also because you can (or actually should) arrange many other things.

In your will, you designate one or two people as guardians. Our advice is to designate one person as guardian and not a couple (i.e., not married couples or partners). The liability for the costs of care and education goes further with two people than with one person. In addition, for official occasions, it is usually more convenient for one person to act on behalf of the child. In daily life, there will not be much difference. After all, the actual parenting and care will be done by the couple and not one of them. Also, there will be no problem about continuing custody if the couple is no longer a couple.

You must be sure that the person you appoint as guardian over your child wants it. The person you appoint as guardian is not obligated to accept this role. After all, it is not a contract. If your designated guardian decides not to accept the appointment, the court will appoint a guardian. You can easily change a guardianship appointment by amending your will.

Haven't you reached a custody arrangement ? Then the judge comes into the picture. The judge - in consultation with the family - will have to assess what the best solution is for your child. The judge can ask for help from the Child Protection Council. If there is no suitable guardian, the judge will award custody to a guardianship agency. They will search for a suitable foster family.

You understand that getting this right for your child is of the utmost importance. Your child has a hard enough time at that point.

Want more information or have questions? If so, please contact us.

We are happy to help.