Appointing a guardian at the request of the Child Care and Protection Board

When a parent with children under 18 dies, the civil registrar notifies the court. A registry clerk checks the custody register to determine if the child is still under the custody of another parent.

Sometimes the Child Care and Protection Board is already involved in the family's affairs and will hear about the parents' death.

A registry clerk checks the custody register to see if the parents have appointed a guardian to act after their death. If so, and if that guardian is willing to accept the guardianship, the registry clerk will process the acceptance of the guardianship. A court decision is not required.

Have the parents not appointed a guardian? Or is the appointed guardian unwilling or unable to accept the guardianship? Then the registry clerk will inform the court that no one has custody of the child. The court can do two things:
 

1. Inform the Child Care and Protection Board immediately. This is what usually happens. Sometimes the Child Care Protection Board is already aware of the death. The Child Care and Protection Board will speak with the child and the family and investigate who would be the best guardian for the child.
   
   The Child Care and Protection Board can apply to the court to appoint a guardian. The guardian can be a person or a certified institution (youth protection organisation).
   
   In that case, the appointment of a guardian always proceeds through a court decision. Acceptance of guardianship through the court registry is not possible in that case.
   
   Read how the procedure works
    
2. Initiate the procedure yourself. The court can also initiate a procedure itself. The court does this by holding a hearing. The Child Care and Protection Board is present at the hearing.
   
   Read how the procedure works

A guardian may also be necessary if the parents who have custody are temporarily unable to exercise custody. For example, if the parents who have custody are (detained) abroad or are in a guardianship (curatele), or if the child's mother is a minor at the time of birth.

In these situations, the Child Care and Protection Board is often already involved with the family or future family. The Child Care and Protection Board then investigates who is able and willing to assume guardianship.  

Good to know

• If a guardian is required because an application has been filed to terminate custody, you can read how the procedure works on the page (in Dutch) on orders terminating custody.
• If the mother is 16 or 17 years old and wants to have custody of her child, she can ask the court to declare her an adult (in Dutch). 

If the parent(s) is/are (temporarily) unable to exercise custody, the appointment of a guardian is always a court decision. Acceptance of guardianship through the court registry is not possible in such cases.

The Child Care and Protection Board investigates who is best suited to become the child's guardian. The Child Care and Protection Board then submits an application to the court to appoint the guardian. The guardian can be a person or a certified institution (youth protection organisation).

Application of the Board

The procedure begins when the Child Care and Protection Board files a petition with the court. The Child Care and Protection Board then becomes the applicant in the procedure. In the petition, the Child Care and Protection Board explains why a guardian is needed for the child and who the Child Care and Protection Board wants the guardian to be. This can be a person or a youth protection organisation.

Interested party

The court determines who is considered an interested party in the procedure. An interested party has certain rights in the procedure. For example, the interested party receives an invitation to the hearing, can submit a statement of defence, and can appeal the judgment. Interested parties can be:

• a living parent without custody
• a person willing to take on guardianship (the intended guardian)
• a family member temporarily taking care of the child
• a foster parent

If you are not the parent and have been raising the child in your family for one year or longer, you are an interested party in the procedure.

Informer

The court can also invite informers to the hearing. This is a person or organisation whose statement the court considers important, such as a family member or a care provider. An informer does not receive documents such as the petition or the court's judgment. The informer also cannot appeal.

The child

The Child Care and Protection Board talks with the child and investigates what is in the child's best interests. Children aged 8 and older always receive an invitation to a child interview with the judge. Children are allowed to tell the court their opinion of situation and how they think the next steps should be taken.

Court invitation

The procedure can also begin with an invitation from the court to a hearing. For example, if the court notes that no one has custody of the child. In that case, there is no petition. The court always invites the Child Care and Protection Board to provide advice.

If the Child Care and Protection Board files a petition for the appointment of a guardian, the court will send the petition to the other interested party (or parties). They can respond.

If you have received a petition from the court, you can do three things:

1. You disagree and file a defence

If you disagree with the application to appoint a guardian, you can respond to the application. This is called filing a defence.

Written defence

You can file a statement of defence with the court. You will need a lawyer for this (see the Legal Advice page). The lawyer will write a statement of defence clearly stating why you disagree with the application. You are the respondent in the procedure.

You can also include your own applications in the statement of defence (unilateral applications). The court can then give the other party the opportunity to respond to them.

Example

The parents of 8-year-old Puck have died suddenly. They have not appointed a guardian for after their death. Puck is temporarily staying with her father's sister. The Child Care and Protection Board is talking with Puck's family and investigating what is in her best interests. The Child Care and Protection Board is requesting the court to appoint her maternal grandmother as guardian. The father's sister is an interested party in the procedure. She disagrees with the application. Her lawyer is filing a statement of defence. In the statement of defence, the sister also requests that she be appointed as guardian for the child.

Oral defence

If the court holds a hearing, you can also present your defence orally. During the hearing, the judge will ask questions that you can answer. You can ask a lawyer to assist you during the hearing, but it is not required (see the Legal Advice page, in Dutch). 

2. You do not want to file a defence and let the court know

If you do not wish to file a defence, you can inform the court of this with a so-called statement of deference. This can speed up the procedure. With a statement of deference, you indicate that you:

• have received the application,
• are not filing a statement of defence, and
• do not require the case to be handled at a hearing. 

You need a lawyer for a statement of deference. The lawyer can prepare and submit the statement for you.

If the court is holding a hearing, you can also let it know during the hearing that you agree.

3. You do not respond

If you don't respond at all and don't appear at the hearing, the court will consider the application without knowing your opinion. You will then receive the court’s decision on custody after a few weeks.

The court may invite the child to an interview with the judge. This will happen in any case if the child is 8 years and older. The meeting is informal and lasts approximately 20 minutes. The child is not obliged to attend the interview. They may also write a letter or do nothing.

More information about the child interview (in Dutch)

Hearing

A court hearing is usually held if a statement of defence has been filed or if the court has any questions. Approximately six weeks before the hearing, all parties will receive a summons. If you have a lawyer, the court will send the summons to your lawyer.

During the hearing, interested parties can express their views on the application. The court will also ask questions and investigate whether the parties can make arrangements.

Not public

The hearing is not public. This means that the court determines who may be present. Interested parties will receive a summons to the hearing. Sometimes the court will also invite an informer.

Declaration of willingness

The court can only grant the application if the guardian is willing to accept guardianship. The guardian can declare their willingness to accept guardianship, either in writing or orally at the hearing.

No hearing

There is usually no hearing if:

• all the conditions provided for by law for granting the application have been met
• a written declaration of willingness of the guardian is included in the file
• all interested parties have let the court know in writing that they agree with the application and
• the court has no further questions

In that case, the court can deliver judgment.

The court usually issues a written judgment within four weeks of the hearing. You will receive the judgment (decision) in the form of a letter via your lawyer, or at home if you do not have a lawyer.

The court may also issue an interim judgment. This is a judgment in which the court does not yet make a final decision, but instead, for example, requests an investigation or issues a temporary decision. The interim judgment outlines the further procedure.

After the judgment, the court will record in the custody register (Parental Authority Register) who the child’s guardian is.

If you disagree with the court’s final judgment, you can appeal to a higher court. You have three months to do so. The judgment states when the three-month period begins. The other party (or parties) can also appeal.

More information about appeals in family cases