Zeeland-West-Brabant District Court 05-07-2024 , ECLI:NL:RBZWB:2024:4599

Content indication

The legislative history shows that restraint is appropriate in the case of adoption if there is opposition from one of the parents. In the context of a complex divorce, such as the case with the parents of an adult, even more restraint is appropriate when it comes to (step-parent) adoption. Moreover, the child has now reached the age of majority, which also requires restraint, since adoption is in principle intended as a child protection measure.

Full pronunciation

order

COURT OF ZEELAND-WEST BRABANT

Family and Youth Law Team

Seat: Breda

Case number: C/02/420649 / FA RK 24-1472

Date of judgment: July 5, 2024

decision on adoption

in the matter of

[the man] ,

hereinafter: the man,

living at a secret address,

lawyer: mr. EPJ Appelman in Alkmaar,

about:

- [the adult] , born in [place of birth] (United States of America) on [date of birth] 2006, hereinafter: [the adult] , residing at a secret address.

The following are considered interested parties in this case:

- [the adult] ;

- [the mother] , hereinafter: the mother, living at a secret address;

- [the father] , hereinafter: the father, residing in [place of residence] , lawyer

Mr. EMG of Nuenen-Meulesteen.

1The process flow

1.1

The file contains the following documents:

- the request and attachments received on 22 March 2024;

- the statement of defense and attachments received on June 11, 2024;

- a copy of the birth certificate of [the adult];

- the letter received on 28 May 2024 from the Child Protection Council;

- the extract from the register of authority regarding [the adult];

- the message from Mr. Appelman dated May 10, 2024;

- the message from Mr. Appelman dated 13 June 2024 with attachments;

- the message from Mr. Van Nuenen dated June 14, 2024.

1.2

The request was heard orally on 18 June 2024 by the multi-member chamber. [The adult], the man with his lawyer, the mother and the father with his lawyer, were present at that hearing.

1.3

Prior to the oral hearing, the multi-member chamber spoke separately with [the adult].

1.4

The Child Protection Council has informed the court that it will refrain from providing advice and conducting an investigation because [the adult] has now reached the age of majority.

2The facts

2.1

Based on the documents in the file, the following has been established:

- [the adult] was born in [place of birth] (United States of America) on [date of birth] 2006.

- [the adult] was born within the now dissolved marriage of the father and the mother.

- By order of [date 1] 2010, the divorce of the father and the mother was pronounced. This order was registered in the civil registry on [date 2] 2010.

- Since October 19, 2020, the mother and the man have been registered with [the adult] at the same residential address in the Municipal Personal Records Database.

- On September 13, 2021, the mother and the man entered into a registered partnership.

- [the adult] turned eighteen on [date of birth] 2006.

- Until [the adult] reached the age of eighteen, the father and mother jointly had parental authority over her.

- The man, the mother and the father have Dutch nationality.

- [the adult] may have American nationality as well as Dutch nationality.

3The request

3.1

The request is for the adoption of [the adult] by the man and to understand that the surname of [the adult] will be: ' [surname] '.

3.2

The father opposes the request and requests that the man's request be declared inadmissible or rejected.

4The assessment

Private International Law (IPR)

4.1

[the adult] was born in the United States of America and the court is ex officio familiar with American legislation, in the sense that someone who is born there automatically acquires American nationality. The Adoption Procedure Rules stipulate that if the BRP extract does not list all nationalities, then other evidence of the nationalities must be submitted. However, despite several requests to that effect, the court has not been allowed to receive any evidence from the lawyer, so it cannot be determined whether [the adult] has American nationality in addition to Dutch nationality.

4.2

Due to the fact that [the adult] was born in the United States of America, this case has an international character. Therefore, the court must determine ex officio whether the court has international jurisdiction to hear the request, and if so, which law applies to the request.

International jurisdiction

4.3

Since the man and the interested parties all reside in the Netherlands, the Dutch court has jurisdiction to hear the present request.

Applicable law

4.4

Under Article 10:105, first paragraph, of the Civil Code (hereinafter: BW), Dutch law applies to an adoption to be pronounced in the Netherlands. Under the second paragraph of that article, the law of the State of which the child has nationality applies to the consent, consultation or information of the child's parents or other persons or institutions. If the child has Dutch nationality, Dutch law applies, regardless of whether the child has another nationality in addition to Dutch nationality. In the present case, this means that Dutch law applies in this case.

Positions

4.5

[the adult] has – in short – indicated that she would like to be adopted by the man. She has had this wish for some time. The man feels like a father to her and she wants him to officially become her father. The man is a father she feels she can rely on. That gives her extra security and she also wants to bear the man's surname.

4.6

In support of the request, it was stated that the man and the mother have had an emotional relationship since March 2020. The man states that he has taken on a fatherly role since then. There is a very close bond and the man and [the adult] therefore wish to formalise their legal bond through adoption. The conditions as set out in Article 1:228 of the Dutch Civil Code have been met, except for the condition as set out under g of this article, namely that in this case the father is no longer entrusted with parental authority. The man states that this condition can be disregarded because [the adult] reached the age of majority on [date of birth] 2024 after the request was filed on 22 March 2024 and that, given the short period of time remaining after the request was filed, it must be deemed in fact impossible to terminate the father's parental authority within that period through court proceedings. The condition relating to authority must therefore be tested ex nunc (current situation) and this condition has now been met, as authority has lapsed by operation of law because [the adult] has now reached the age of majority and there is therefore no longer any authority. In the event that the court has doubts as to whether this condition should be tested ex nunc or ex tunc (situation at the time the request was submitted), the lawyer requests the court to submit a preliminary question to the Supreme Court stating at what point the condition of Article 1:228, first paragraph, opening sentence and under g should be tested.

It has also been stated that it is not to be expected that contact between [the adult] and her father will be restored in the near future. There has been practically no contact between [the adult] and her father since birth. Moreover, the adoption is apparently in her interest. She needs peace and security and she can develop well in the family of the man and the mother. To the extent that the father opposes the request, this contradiction should be disregarded. The man is abusing the law with his objection. According to the man, all the conditions for adoption have been met, so that the request can be granted.

4.7

The father has defended himself against the request. The father argues that an incorrect picture has been painted of the situation during and after the parents' marriage. In the execution of the joint authority, there has been a clear difference in interpretation between the parents of both the agreements made and ratified and the mutual rights and obligations. The children have been the victims of this, which has undoubtedly given them the feeling that they have to make a choice between the father and the mother. In the past, the parents have gone through an intensive process at Stichting Kompaan en De Bocht. After this process, a contact arrangement agreed between them was laid down by the court in an order of 28 March 2017. This arrangement was complied with until 2020. The father therefore disputes that there has been virtually no contact with [the adult] after the birth. This contact was only broken off after the man came into the mother's life. It is good that [the adult] feels comfortable in the mother's family situation, but the father cannot escape the impression that [the adult] has had to choose between her parents again. The father finds this very difficult and he would prefer to restore his contact with [the adult]. In recent years, he has chosen to give [the adult] the space she asked for. However, that does not mean that she is no longer welcome with him and that the father no longer cares about her. Just like [name 1] and [name 2], [the adult] is his child and he will not give up the biological and family bond. He will do anything for the children, but they must be open to this and allow the father into their lives. The father hopes that [the adult] and [name 1], just like [name 2], will want to contact him again at some point. The door will always remain open for them, but they ultimately determine the pace. The father is still involved in the upbringing and care of [the adult], albeit from a distance. For example, he looked at her school results and bank account online. The father saw things there that worried him. He tried to discuss these concerns with the mother, but the mother was not open to this. Furthermore, the father argued that granting the request would not only have consequences for the position of [the adult] under the law of descent and inheritance, but also for (the legal relationship with) [name 1] and [name 2]. He wonders whether [the adult] is aware of this. Finally, the father argued that a number of legal conditions for the adoption have not been met. The request must therefore be rejected.

4.8

The mother indicated during the oral hearing that she agreed to the man's request. She has difficulty with the fact that the father continues to deny what happened between them during the marriage.

Court assessment

4.9

The court considers as follows.

According to article 1:227, first paragraph, BW, adoption takes place by a court ruling at the request of two persons together or at the request of one person alone. According to the second paragraph of this article, such a request may only be made by the adopter who is the spouse, registered partner or other life companion of the parent if he or she has lived with that parent for at least three consecutive years immediately preceding the submission of the request.

4.10

The court finds on the basis of the documents that the mother and the man from

October 19, 2020 are registered at the same address in the Personal Records Database (BRP). They have indicated that they have had an emotional relationship with each other since March 2020. The court is of the opinion that the requirement as stated in article 1:227, paragraph 2, BW has thus been met .

4.11

The court further considers that the request pursuant to Article 1:227, third paragraph, of the Dutch Civil Code can only be granted if the adoption is in the obvious interest of the child and if it is established at the time of the request for adoption and it can reasonably be foreseen for the future that the child can no longer expect anything from its parent in the capacity of parent and if the conditions mentioned in Article 1:228 of the Dutch Civil Code are met.

4.12

Based on Article 1:228, first paragraph, of the Dutch Civil Code, the following conditions for adoption must be met:

a. that the child is a minor on the day of the first request and that, if the child is twelve years of age or older on the day of the request, the child has not raised any objections to the granting of the request at the time of the hearing;

b. the child is not a grandchild of an adopter;

c. that the adopter or each of the adopters is at least eighteen years older than the child;

d. that neither parent opposes the request;

e. that the minor mother of the child has reached the age of sixteen on the day of the request;

f. that the adopter or adopters have cared for and raised the child for at least one year;

g. that the parent or parents do not or no longer have custody of the child.

4.13

The second paragraph of Article 1:228 of the Dutch Civil Code stipulates that the objection of a parent as referred to in the first paragraph, under d, can be disregarded:

if the child and the parent have not or hardly lived together as a family; or

if the parent has abused custody of the child or has grossly neglected the care and upbringing of the child; or

if the parent has been irrevocably convicted of committing against the minor one of the offences described in Titles XIII to XV and XVIII to XX of Book Two of the Criminal Code.

4.14

The father opposes the request. This does not meet the condition referred to in Article 1:228, first paragraph, opening sentence and under d, BW . The court therefore arrives at the question of whether there are grounds to disregard this contradiction, as stipulated in Article 1:228, second paragraph. The court considers the following in this regard.

According to the legislative history, the starting point for the application of the second paragraph of Article 1:228 BW is that the objection of a parent can only be ignored in a limited number of cases. The legislator wanted to give the judge some room for assessment by offering the possibility of weighing up the importance of maintaining the bond between the child and its original parent(s) and the importance of legally confirming the bond between the child and the adopter. This must then concern cases in which there is no bond between parent and child. The court considers in this regard that the father and [the adult] lived together as a family until the divorce of the mother and the father in 2010. A parenting plan was drawn up in the divorce proceedings in which the main residence was with the mother and a contact arrangement with the father was included. Subsequently, the father submitted a request to the court in 2014 to - among other things - restore contact between him and the children. In these proceedings, the parents were referred to Kompaan and De Bocht for a course of Intensive Contact Guidance. During this course, they agreed on a contact arrangement between [the adult] and the father and this agreed arrangement was recorded by the court in an order. [the adult] then had contact with her father until mid-2020, when she was 13/14 years old. The court thus establishes that there was indeed contact between her and her father after the birth of [the adult].

It has become apparent that the relationship between the parents is still disturbed and that there are complex divorce issues. The parents have therefore – unfortunately for [the adult] – not been able to discuss and resolve the issues surrounding the contact between the father and [the adult] by mutual agreement. There has been no structural contact between them at all since 2020. However, the parents did have joint custody of [the adult] until her eighteenth birthday. The father has performed this role – albeit from a distance – and he has always remained involved with [the adult] despite the context of a complex divorce. Contrary to what the man claims, there is therefore no lack of a bond between the father and [the adult]. In addition, the father has repeatedly indicated that he would like to restore contact with [the adult] and that he will let [the adult] determine the pace in this. The court also found no evidence that the father abused his authority or grossly neglected the care and upbringing of [the adult]. He did what he could, within the possibilities he had.

The court cannot accept the man's defence that the father is abusing his authority to contest the case. The father is defending himself because he believes that there are sufficient reasons not to break the legal bond with his daughter. There are no circumstances that the father is abusing his authority to defend himself. The fact that the man does not agree with this defence is insufficient substantiation for the claim that there would be an abuse of rights. The court will therefore reject this defence.

4.15

In view of the above facts and circumstances, the court is of the opinion that the father's contradiction cannot be ignored. In this day and age – in which step-parents and blended families are becoming increasingly common – it is not exceptional for someone to have a better bond with his or her 'social' parent than with his or her legal (and biological) parent. An adoption, in which the existing family law relationships between the child and its original family (in this case the father) are broken and new family law relationships arise between the adoptive parent and their blood and marital relatives on the one hand and the adopted child on the other, has very far-reaching consequences for a child and the parents. The legislative history shows that in the case of adoption, restraint must be exercised in order to ignore the contradiction of a parent. The court is of the opinion that in the context of a complex divorce, as is the case with the parents of [the adult], even greater restraint must be exercised in the case of a (step-parent) adoption. Furthermore, [the adult] is now an adult, which also requires restraint, since adoption is in principle intended as a child protection measure. It also appears from established case law that the mere wish to be adopted is insufficient, because matters such as a change of surname and inheritance law matters can also be arranged in a different and less far-reaching manner.

4.16

The court will reject the request because the father opposes the request and the condition as stipulated in Article 1:228, first paragraph, under d, of the Dutch Civil Code has not been met .

The court does not assess the condition under Article 1:228 BW, paragraph 1, under g, BW.

4.17

Given the nature of the proceedings, the costs of the proceedings will be compensated. This means that each party must bear its own costs.

4.18

This leads to the following decision.

5The decision

The court:

5.1

rejects the request.

5.2

compensates the costs of the proceedings in such a way that each party bears its own costs.

This order was made by Mrs. Van Triest, Hamburger and Phillips, judges who are also juvenile judges, and pronounced in public on 5 July 2024 in the presence of the registrar.

If an appeal against this decision is possible, it can be lodged:

by the applicants and those to whom a copy of the decision has been provided or sent, within three months after the date of the judgment,

by other interested parties within three months after service thereof or after the decision has become known to them in some other way.

The appeal must be filed with the registry of the court through a lawyer.

Court of Appeal 's-Hertogenbosch.