Guardianship over a child

A child is assigned a guardian:

1. If neither parent has custody of the child:
   • because the custody of the parents was terminated, or
   • because they have passed away.

Good to know: Is there only one parent with custody of the child? And has this parent passed away? Then the other parent (legal parent) without custody can apply for custody. The court will then generally entrust the other parent with custody. The court only appoints a guardian if it does not think this to be in the child’s interests.
 

2. If the parents are (temporarily) unable to exercise custody, as they cannot bear the responsibility of the custody:
   • because they are minors, or 
   • because they have been placed under curatorship, or
   • because they have a serious mental disorder.

Or because the parents are (temporarily) unable to exercise custody. For example, because the parents are in jail or because the parents’ domicile is unknown.

Guardianship by one person

A guardian:

• cannot have a serious mental disorder.
• cannot have been placed under curatorship.
• needs to be over 18 years of age.
• must accept the appointment as guardian. 

Joint guardianship by two persons

Two persons (who are not the child's parents) can be joint guardians. This often occurs with foster parents who have been looking after a foster child for a longer period of time. For guardianship by two persons (joint guardianship), apart from above conditions for ‘guardianship by one person’, the guardians also need to have a personal bond with the child. The guardians raise the child together. The child needs to be able to grow up in a safe and trusted environment with both guardians. The court will assess this. The court may reject the request for joint guardianship if the child’s interests are at risk.

Also view: application for guardianship

An institution

A guardian does not always need to be a person, the court may also appoint a certified institution (youth protection organisation) as guardian.

Parents may appoint one or two guardians in a will or the custody register (Parental Authority Register) following their death. Parents may not appoint an institution as guardian. If, following the parents’ death, the appointed guardian accepts the guardianship, a court decision is usually not required.

Sometimes, however, a court decision on the guardianship is required. For example in case:

• the parents have died and they did not appoint a guardian
• the parents have died and they each appointed a different guardian
• the parents’ custody was terminated by the court
• the parents (temporarily) cannot bear the responsibility for the custody. 

The Child Care and Protection Board then talks with the persons involved regarding the child. When necessary, the court organises a hearing and appoints a guardian. If the child is 8 years old or over, the court also asks the child's opinion in a child interview.

That depends if you are the sole guardian or if you have joint guardianship together with another person.

Are you the sole guardian?

Then you are responsible for:

• the care and upbringing of the child. You do not need to do this yourself: the child may, for example, also live in a foster family. And: 
• arranging the child’s monetary matters. The court supervises. 

Are you a joint guardian?

You have more duties than a sole guardian:

• You are - just as parents - obliged to care for and bring up the child. You always care for and bring up the child together.
• You both pay for the costs for the child. 

Please note: this may differ if you have concluded a foster contract with a care provider.

As long as there is a parent with custody of the child, you, as appointed guardian, do not need to do anything. Nor do you need to give consent for the appointment in the custody register or will. If the parent(s) with custody pass away, it depends on the situation whether a guardian needs to be appointed and whether you need to do something.

Usually no guardian needs to be appointed for the child if:

• One of the two parents with custody passes away: the other parent is automatically assigned sole custody of the child following the death.
• There are two parents and the parent with sole custody passes away: the other parent or the Child Care and Protection Board may request the court to assign custody to the surviving parent without custody. If the court does not think this to be in the child’s interests, the court will reject the request. The court then appoints a guardian. 

A guardian for the child is required if:

• the child has one parent (with custody) and that parent passes away. 
• both parents with custody pass away. 
• the parent having sole custody passes away and the other parent (without custody) does not want or cannot have custody of the child. 

The moment a guardian is required you, as designated guardian, decide if you accept the guardianship. If you accept, you are responsible for the care and upbringing of the child.

You send a declaration of willingness to the court

When you hear about the death, you can inform the court yourself that you wish to become guardian. You do this by sending a declaration of willingness, in Dutch (pdf, 173 KB) to the court.

The declaration of willingness is a letter stating that you wish to be guardian to the child. You send the declaration of willingness to the registry of the court that has jurisdiction over the place of residence of the child. 

Sometimes, you are first asked by letter

It is possible that you first receive a letter asking you if you wish to become guardian. The sender of the letter can be:

• the Child Care and Protection Board, or
• the court, or
• the civil-law notary, or
• an interested party, such as an heir or a temporary guardian.

Do you wish to accept the guardianship? If you have received the question via a letter, you must ensure that you send your declaration of willingness in time:

• you live in the Netherlands: the court needs to have received your declaration of willingness within 14 days after receipt of the letter.
• you are staying outside the Netherlands: you need to respond within 2 months.

The declaration of willingness refers you to the registry of the court that has jurisdiction over the place (in Dutch) of residence of the child.

Registration in the custody register

After receipt of the declaration of willingness the court registry may ask you for a number of documents. If all legal requirements have been met, the court records in the custody register (Parental Authority Register) that you have guardianship of the child.

It may occur that you have been designated as guardian, but are unable or unwilling to fulfil this task.

If you do not wish to become guardian, it is first checked if another guardian has been designated by the parents, as they are allowed to designate more than one guardian.

Are you the only designated guardian? Then the Child Care and Protection Board (by request of the court) checks if another person is willing and able to take on the guardianship. If no suitable person is available, the court will appoint a youth protection organisation (certified institution) as guardian.