26
nov
2018

Travelling in holiday season

By Magali van Maanen

Thanksgiving, Sinterklaas, Christmas; typically the holidays one wants to spend with their loved ones. Unfortunately, for separated couples with children, this can prove a challenge. First they have to determine when the children are with each parent. Next comes the discussion where the children will spend their holidays. Often, for expats the Christmas period is when they want to travel back to their home country. What if the parents cannot agree on the division of the holidays or a trip abroad?

The main reason for parents not to consent to a certain division of the holidays is because it interferes with their own schedule. The most important thing to keep in mind is to start discussing the holidays in due time. In the Netherlands, when separating, parents are obliged to draft a parenting plan. The parents negotiate the consequences of the separation for the children and set their agreements down in the written parenting plan. Often, this will also contain a division of all the holidays.

Travelling abroad with children is also a reason for many disputes between parents. Not necessarily because the left behind parent is wary of the country that the children are travelling to, but because they are afraid that the other parent will not bring back the children when the holidays are over, which can be qualified as international child abduction. If the left behind parent refuses to give consent via the “travel permission form”, which is mandatory when travelling with minors, what can one do?

When parents cannot agree to a division of the holidays or travelling abroad, the parent who seeks relief can petition the court for a division of the holidays and/or permission to travel. This can either be in summary proceedings (kort geding), or in regular court proceedings, which are usually heard by the court within 6 weeks after filing the petition. It is important to engage a lawyer in due time, to ensure the hearing can take place well before the intended holiday!

The judge will always put the best interest of the child first. However, the interests of the travelling parent and that of the left behind parent are also a major factor. For instance, if the country where the parent wishes to travel to is unsafe according to the Government, then permission can be denied. Permission is also denied if there is a grave risk of child abduction. According to the specific situation, the judge will weigh the risks. For instance, the chances are slim the travelling parent will not return if there are strong ties to the Dutch community, a house, a job and family in the Netherlands. If a parent doesn’t have strong ties to the Netherlands and intends to travel to family abroad, the risk is higher. However, in case of vacation, many times the judge will conclude there is no grave risk of child abduction and grant permission for the trip. In general, it is deemed important that children can spend time with their family.

The left behind parent’s permission will be replaced by the judge’s decision. The court order can serve as the “permission to travel form”. Thankfully, it happens often in court that the parents are able to make an agreement amongst themselves, so that the court order is not necessary anymore.

 

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