Determining authority for persons who have resided abroad
# language: en Feature: Determining authority for persons who have resided abroad Where a minor has had a habitual residence abroad for a time, the authority may change under the application of foreign law. In some situations this makes it impossible to determine what the authority is. We apply the following principles here: - the habitual residence of the minor determines under which applicable law the authority is determined. The country where the parents reside is not relevant - once given, always given: a person cannot lose authority by operation of law through the minor settling in another country (HKV96) - authority obtained in the Netherlands cannot be lost by emigrating to another country - authority obtained in another country cannot be lost by immigrating to the Netherlands - a judicial ruling on authority remains valid after settling in another country - an adoption remains valid after settling in another country When determining authority, the place where the person has their "gewone" residence is considered. In the case of temporary residence abroad, for a holiday or an internship for example, the habitual residence is still in the Netherlands. In the API we regard the municipality of registration of a person as decisive for the habitual residence. If the person is registered in a Dutch municipality, the person has a Dutch address as habitual residence. Not yet worked out in this version: - Obtaining joint parental authority with unmarried parents after the minor has resided in specific countries (Belgium, Spain, Poland, etc.) - Establishing that there is a foreign adoption where it has not been recognized in the Netherlands (where the foreign certificate has not yet been converted into a Dutch certificate at Landelijke taken) Background: Given the person 'Gerda' with citizen service number '000000012' * is of full age And the person 'Aart' with citizen service number '000000024' * is of full age And the person 'Bert' with citizen service number '000000036' * is a minor And the person 'Zoe' with citizen service number '000000048' * is of full age And the person 'Giovanni' without a citizen service number * is of full age And the person 'Ariana' without a citizen service number * is of full age @to-do @skip-verify Rule: The authority cannot (yet) be determined for a minor who has had a habitual residence abroad, with two parents, and where according to the data in the BRP sole parental authority would be determined by operation of law The authority cannot be determined because: - We do not (yet) know whether both parents obtained joint parental authority abroad. In some countries (Belgium, Spain, etc.) the father also obtains authority where the parents are not married. The list of countries where this is the case is not yet known. - We do not know whether there is a foreign adoption whereby both (adoptive) parents obtain authority. The rules for this have not yet been worked out. Scenario: the minor was born abroad and adopted abroad by unmarried parents, and the foreign adoption certificate has not (yet) been converted into a Dutch certificate # Not yet recognized by the API as adoption; to be picked up later if this turns out to be a large group Given person 'Bert' * was born on 14-10-2019 * was born in Germany And 'Bert' was adopted abroad by 'Gerda' and 'Aart' on 28-11-2019 with document 'ad akte 6029' And immigrated on 29-11-2019 When 'gezag' is requested for 'Bert' Then the authority over 'Bert' cannot be determined, with the explanation 'gezag is niet te bepalen omdat minderjarige in het buitenland heeft verbleven en onbekend is of de andere ouder dan de geboortemoeder daar gezag heeft gekregen.' Scenario: the parents of the minor were never married to each other, the minor was acknowledged before 1-1-2023 and immigrated after 1-1-2023 Given person 'Bert' * was born on 14-10-2019 * has 'Gerda' as parent And 'Bert' was acknowledged by 'Aart' on 30-11-2019 * was born in Germany * immigrated on 6-1-2023 When 'gezag' is requested for 'Bert' Then the authority over 'Bert' cannot be determined, with the explanation 'gezag is niet te bepalen omdat minderjarige in het buitenland heeft verbleven en onbekend is of de andere ouder dan de geboortemoeder daar gezag heeft gekregen.' Scenario: the parents of the minor were never married to each other, the minor was acknowledged before 1-1-2023 and returned to the Netherlands after 1-1-2023 Given person 'Bert' * was born on 14-10-2019 * has 'Gerda' as parent And 'Bert' was acknowledged by 'Aart' on 30-11-2019 And 'Bert' emigrated to <land> 5 years ago And immigrated on 6-11-2024 When 'gezag' is requested for 'Bert' Then the authority over 'Bert' cannot be determined, with the explanation 'gezag is niet te bepalen omdat minderjarige in het buitenland heeft verbleven en onbekend is of de andere ouder dan de geboortemoeder daar gezag heeft gekregen.' Examples: | land | omschrijving land | | Duitsland | een land waar volgens het recht van dat land geen gezamenlijk gezag ontstaat bij erkenning | | Spanje | een waar door erkenning wel gezamenlijk gezag ontstaat | @to-do @skip-verify Rule: A judicial ruling on the authority over a minor remains valid where the minor has had a habitual residence abroad Scenario: the minor immigrated and authority was subsequently awarded in a judicial ruling Given person 'Bert' * has 'Aart' and 'Gerda' as parents * was born in Germany And immigrated on 29-11-2022 And on 27-03-2024 a judicial ruling awarded authority to <toegewezen aan> When 'gezag' is requested for 'Bert' Then the authority over 'Bert' is <gezag uitspraak> Examples: | toegewezen aan | gezag uitspraak | | 'Aart' | eenhoofdig ouderlijk gezag met ouder 'Aart' | | 'Gerda' | eenhoofdig ouderlijk gezag met ouder 'Gerda' | | beide ouders | gezamenlijk ouderlijk gezag met ouder 'Gerda' en ouder 'Aart' | | een voogdijinstelling | voogdij | | ouder 'Aart' en een derde | gezamenlijk gezag met ouder 'Aart' en een onbekende derde | | ouder 'Gerda' en een derde | gezamenlijk gezag met ouder 'Gerda' en een onbekende derde | Scenario: Authority was awarded in a judicial ruling, after which the minor emigrated and then immigrated again Given person 'Bert' * has 'Aart' and 'Gerda' as parents And 2 years ago a judicial ruling awarded authority to <toegewezen aan> And 'Bert' emigrated to Belgium 1 years ago And 'Bert' immigrated to the Netherlands last month When 'gezag' is requested for 'Bert' Then the authority over 'Bert' is <gezag uitspraak> Examples: | toegewezen aan | gezag uitspraak | | 'Aart' | eenhoofdig ouderlijk gezag met ouder 'Aart' | | 'Gerda' | eenhoofdig ouderlijk gezag met ouder 'Gerda' | | beide ouders | gezamenlijk ouderlijk gezag met ouder 'Gerda' en ouder 'Aart' | | een voogdijinstelling | voogdij | | ouder 'Aart' en een derde | gezamenlijk gezag met ouder 'Aart' en een onbekende derde | | ouder 'Gerda' en een derde | gezamenlijk gezag met ouder 'Gerda' en een onbekende derde | Rule: The authority can be determined for a minor who has had a habitual residence abroad and is under joint parental authority @nieuw Scenario: the minor was born abroad and has two parents who are married to each other Given 'Gerda' and 'Aart' are married to each other And person 'Bert' * has 'Aart' and 'Gerda' as parents * was born in Germany * immigrated on 30-11-2022 When 'gezag' is requested for 'Bert' Then the authority over 'Bert' is joint parental authority with parent 'Gerda' and parent 'Aart' @to-do @skip-verify Scenario: the minor was born abroad and adopted in the Netherlands Given person 'Bert' * was born on 14-10-2019 * was born in Germany And immigrated on 29-11-2019 And 'Bert' was adopted on 30-11-2019 by 'Gerda' and 'Aart' When 'gezag' is requested for 'Bert' Then the authority over 'Bert' is joint parental authority with parent 'Gerda' and parent 'Aart' @nieuw Scenario: the minor has had a habitual residence abroad and has two parents who are married to each other Given 'Gerda' and 'Aart' are married to each other And person 'Bert' * has 'Aart' and 'Gerda' as parents * was born in the Netherlands And 'Bert' emigrated to Germany 10 years ago And immigrated on 30-11-2022 When 'gezag' is requested for 'Bert' Then the authority over 'Bert' is joint parental authority with parent 'Gerda' and parent 'Aart' @to-do @skip-verify Rule: The authority can be determined for a minor who has had a habitual residence abroad and is under joint authority The Netherlands also recognizes marriages of same-sex couples concluded abroad. For determining authority, a foreign marriage therefore has the same status as a marriage in the Netherlands (Article 1:253sa of the Dutch Civil Code). Scenario: the minor was born abroad and has one parent who was married at the time of the birth of the minor Given 'Gerda' and 'Zoe' married 6 years ago And person 'Bert' * has 'Gerda' as parent * was born in Germany * was born 5 years ago * immigrated to the Netherlands 3 years ago When 'gezag' is requested for 'Bert' Then the authority over 'Bert' is joint authority with parent 'Gerda' and third party 'Zoe' @to-do @skip-verify Rule: The authority can be determined for a minor who has had a habitual residence abroad and has one parent Scenario: the minor was born abroad and has one parent for whom no marriage is known Given person 'Bert' * was born in Germany * has 'Gerda' as parent And 'Bert' immigrated to the Netherlands 10 years ago When 'gezag' is requested for 'Bert' Then the authority over 'Bert' is sole parental authority with parent 'Gerda' @nieuw Rule: the authority can be determined for a minor one or both of whose holders of authority are not registered in the BRP In that case we do not know with certainty whether anything has changed in the situation of this parent or these parents. For example, whether a parent has been deprived of parental authority or has died. In that case the authority is determined on the basis of the parents' data as known. An explanation is then supplied stating that the person can have changed authority recorded in the parental authority register. The situation in which neither parent is in the BRP always results in guardianship being pronounced. Scenario: the minor was born in the Netherlands and one of the parents is not registered in the BRP Given person 'Bert' * was born 1 years ago * is registered in a Dutch municipality * has 'Gerda' as parent * has 'Giovanni' as a parent who is not registered in the BRP with a citizen service number When 'gezag' is requested for 'Bert' Then the authority over 'Bert' is joint parental authority with parent 'Gerda' and parent 'Giovanni' @to-do @skip-verify Scenario: the minor was born in the Netherlands and one of the parents is not registered in the BRP Given person 'Bert' * was born 1 years ago * is registered in a Dutch municipality * has 'Gerda' as parent * has 'Giovanni' as a parent who is not registered in the BRP with a citizen service number When 'gezag' is requested for 'Bert' Then the authority over 'Bert' is joint parental authority with parent 'Gerda' and parent 'Giovanni', with the explanation 'gezag is bepaald op basis van onvolledige gegevens van Giovanni. Feiten die bepalend zijn voor het gezag van Giovanni kunnen betrokkenen in het gezagsregister dan wel bij je woongemeente laten inschrijven, zodat zij worden meegenomen in de gezagsbepaling van minderjarige.' Scenario: the minor was born in the Netherlands and one of the parents is not registered in the BRP Given person 'Bert' * was born 10 years ago * is registered in a Dutch municipality * has 'Gerda' as parent * has 'Giovanni' as a parent who is not registered in the BRP with a citizen service number When 'gezag' is requested for 'Bert' Then the authority over 'Bert' is sole parental authority with parent 'Gerda' Scenario: the minor was born in the Netherlands, one of the parents is not registered in the BRP and the parents are married to each other Given person 'Bert' * was born 10 years ago * is registered in a Dutch municipality * has 'Gerda' as parent * has 'Giovanni' as a parent who is not registered in the BRP with a citizen service number And 'Gerda' and 'Giovanni' are married to each other When 'gezag' is requested for 'Bert' Then the authority over 'Bert' is joint parental authority with parent 'Gerda' and parent 'Giovanni' @to-do @skip-verify Scenario: the minor was born in the Netherlands, one of the parents is not registered in the BRP and the parents are married to each other Given person 'Bert' * was born 10 years ago * is registered in a Dutch municipality * has 'Gerda' as parent * has 'Giovanni' as a parent who is not registered in the BRP with a citizen service number And 'Gerda' and 'Giovanni' are married to each other When 'gezag' is requested for 'Bert' Then the authority over 'Bert' is joint parental authority with parent 'Gerda' and parent 'Giovanni', with the explanation 'gezag is bepaald op basis van onvolledige gegevens van Giovanni. Feiten die bepalend zijn voor het gezag van Giovanni kunnen betrokkenen in het gezagsregister dan wel bij je woongemeente laten inschrijven, zodat zij worden meegenomen in de gezagsbepaling van minderjarige.' Scenario: the minor was born in the Netherlands, the parent was married at the time of birth and the partner is not registered in the BRP Given 'Gerda' married 'Ariana' 12 years ago, who is not registered in the BRP with a citizen service number And person 'Bert' * was born 10 years ago * has 'Gerda' as parent When 'gezag' is requested for 'Bert' Then the authority over 'Bert' is joint authority with parent 'Gerda' and third party 'Ariana' @to-do @skip-verify Scenario: the minor was born in the Netherlands, the parent was married at the time of birth and the partner is not registered in the BRP Given 'Gerda' married 'Ariana' 12 years ago, who is not registered in the BRP with a citizen service number And person 'Bert' * was born 10 years ago * has 'Gerda' as parent When 'gezag' is requested for 'Bert' Then the authority over 'Bert' is joint authority with parent 'Gerda' and third party 'Ariana', with the explanation 'gezag is bepaald op basis van onvolledige gegevens van Ariana Schmidt. Feiten die bepalend zijn voor het gezag van Ariana Schmidt kunnen in het gezagsregister worden opgenomen, zodat zij worden meegenomen in de gezagsbepaling van minderjarige.'