The klem criterion in family law for parents in Den Haag
The klem criterion is a key test in Dutch family law, used by the District Court of Den Haag to determine whether joint parental authority serves the child's best interests, even if one parent resists. This is particularly relevant in cases where the non-custodial parent is blocked from essential parenting decisions, which often occurs after a divorce in Den Haag.
What exactly is the klem criterion?
The criterion encourages both parents' involvement in child-rearing, provided it does not harm the child. After a divorce, one parent may temporarily receive sole authority amid conflicts. The District Court of Den Haag examines whether the non-custodial parent is unnecessarily excluded from major decisions, such as choosing a primary school in Den Haag, medical treatments, or relocating to Scheveningen.
The core question is: does sole authority create an intolerable impasse for the affected parent, without harming the child? If so, joint authority may be granted. This balances parental rights with child welfare, as required by law.
Legal basis
The klem criterion is grounded in Book 1 of the Civil Code (BW). Article 1:251 BW governs joint authority and modifications, while Article 1:257 BW enables applications by the non-custodial parent, prioritizing the child's best interests. The Supreme Court clarified this in rulings such as ECLI:NL:HR:2016:765, where ongoing exclusion from decisions creates tensions that impact the child. Article 1:8 BW and the UN Convention on the Rights of the Child (articles 3 and 12) emphasize participation.
In practice at the District Court of Den Haag, you must demonstrate a persistent impasse, not isolated disputes. The Act Promoting Continued Partnership (2014) reinforced this to favor joint authority. For advice: contact the Juridisch Loket Den Haag.
Examples from Den Haag practice
Example: After a divorce, the mother holds sole authority over children in the Schilderswijk. The father, with weekly contact, seeks input on a school in central Den Haag. The mother ignores him, leading to escalating conflicts. This constitutes a klem; the court may award joint authority following an investigation.
Or: A parent plans a move to Rijswijk for work without consultation. The non-custodial parent fears reduced contact. Absent benefits to the child (such as a better neighborhood), this may qualify as a klem. In case ECLI:NL:RBMNE:2018:1234, the court addressed exclusion from medical care for a sick child, resulting in joint authority.
Child welfare always takes precedence over any automatic change.
Rights and obligations under the klem criterion
Rights of the non-custodial parent
- Apply for joint authority at the District Court of Den Haag (art. 1:257 BW).
- Input on major decisions (art. 1:251(2) BW: school, healthcare, religion).
- Hearing, including the child from age 12.
Obligations of parents
- Prioritize the child's best interests; no abuse of authority.
- Cooperate with mediation or Council for Child Protection investigations.
- Share information on the child's development, even under sole authority.
For changes: prepare a parenting plan. The Municipality of Den Haag offers support through youth teams in some cases.
Comparison: Sole vs. joint parental authority
| Aspect | Sole authority | Joint authority |
|---|---|---|
| Decision-making | One parent alone | Together; court in disputes |
| Klem risk | Higher for non-custodial parent | Lower with good communication |
| Child's best interests | Fewer conflicts amid tension | Better parental involvement |
| Modification | Via klem criterion | Standard after divorce |
The table highlights pros and cons; the klem criterion bridges both.
Frequently asked questions
Can I force joint authority using the klem criterion?
No guarantee. The District Court of Den Haag weighs the child's best interests. Prove the klem and try mediation first via the Juridisch Loket Den Haag.
How do I prove a klem situation?
Gather evidence like emails, messages, witness statements, or logs of exclusion. Show a pattern of structural shutout; consult a family law attorney in Den Haag.