The Klem Criterion in Family Law for Utrecht Residents
For residents of Utrecht, the klem criterion is a key test in family law. It determines whether joint parental authority serves the child's best interests, even if one parent objects. This is particularly relevant when the parent without parental authority faces blocks on essential upbringing decisions, such as after a divorce. In Utrecht, you can turn to the District Court Utrecht for this.
What Exactly Does the Klem Criterion Entail?
The criterion promotes both parents' roles in upbringing, provided it does not harm the child. After a divorce, one parent often gets sole parental authority in disputes. The test examines whether the parent without authority is seriously impeded in decisions on school, health, or relocation within or outside Utrecht. The core question: does sole authority create an intolerable impasse for the parent without harming the child? If so, the District Court Utrecht may award joint parental authority, in line with the law.
For advice, visit Juridisch Loket Utrecht for free.
Legal Basis
The klem criterion is based on Book 1 of the Dutch Civil Code (DCC). Article 1:251 DCC governs joint parental authority and modifications, while Article 1:257 DCC outlines the procedure for applications by the parent without authority, prioritizing the child's best interests. The Supreme Court clarified this in cases like ECLI:NL:HR:2016:765, where ongoing exclusion from decisions creates tensions affecting the child. Article 1:8 DCC and the UN Convention on the Rights of the Child (Articles 3 and 12) emphasize child participation and parental involvement.
In Utrecht cases, you must demonstrate sustained impediment, not a one-off dispute. The 2014 legislation strengthened this to promote joint parental authority.
Examples from Utrecht Practice
Consider a divorced father in Utrecht with two children under the mother's sole parental authority. He sees his children regularly but is ignored on choosing a primary school in the Lombok neighborhood. This deeply frustrates him. The District Court Utrecht may award joint parental authority after investigation, if it does not harm the child.
Or: a mother wants to move from Utrecht to Amersfoort for work without consultation. This hinders contact with the father without authority. If in the child's interest (e.g., better neighborhood), that prevails, but in cases like ECLI:NL:RBMNE:2018:1234, exclusion from medical decisions for a sick child led to joint authority. Always balancing child welfare.
Rights and Obligations under the Klem Criterion
Rights of the Parent without Parental Authority
- Apply for joint parental authority at District Court Utrecht (Art. 1:257 DCC).
- Input on major decisions (Art. 1:251(2) DCC: education, healthcare, religion).
- Hearing, including the child (from age 12).
Obligations of Parents
- Put the child first: no abuse of authority.
- Cooperate in mediation or Child Protection Board investigation.
- Share updates on developments, even under sole authority.
For changes: draw up a parental authority plan via Juridisch Loket Utrecht or Municipality of Utrecht.
Comparison: Sole vs. Joint Parental Authority
| Aspect | Sole Parental Authority | Joint Parental Authority |
|---|---|---|
| Decisions | One parent alone | Together; court in disputes |
| Klem Risk | Higher for the excluded parent | Lower with consultation |
| Child's Best Interests | Less conflict in crises | Greater parental involvement |
| Modification | Via klem criterion | Standard after divorce |
The klem criterion effectively bridges both systems.
Frequently Asked Questions
Can I force joint parental authority via the klem criterion?
No guarantee. District Court Utrecht prioritizes the child. Prove the impasse and try mediation first at Juridisch Loket Utrecht.
How do I prove a klem situation?
Gather evidence like emails, texts, witness statements, or logs of being ignored. Document structural exclusion and consult Juridisch Loket Utrecht for help building your case file.