Adoption of a child in the Netherlands

As of 1 April 2001, two women of two men can jointly adopt a child in the Netherlands. Under the new adoption rules, children who are being raised by same-sex couples are given better judicial protection, for example, because, through adoption, they will become the lawful heirs of their adoptive parents.

Furthermore, a new condition will apply for all adoptions. From now on, adoption may only take place if the child has nothing more to expect from its original parent(s).

The Netherlands is the first country to allow same-sex couples to jointly adopt a child. The new rules relate to adoption of a child in the Netherlands, that is, a child with its ordinary place of residence in the Netherlands. For the adoption of a child from another country, it continues to apply that couples wishing to adopt a child must be married and of different sexes.

Drastic measure
Thanks to adoption, a new, legal family tie comes into being between the child and the adoptive parent(s). The family ties with the original parent(s) cease to exist. This makes adoption a drastic measure. The starting point in the legislation is that adoption must only be possible if the original family ties cannot be maintained. For this reason, adoption may only take place if a number of conditions are met.

New condition: nothing more to expect from the original parent(s)
It is already a requirement that an adoption must be to the manifest benefit of the child. There may be no doubt about this at all. New is the condition that a child can expect nothing more from its original parent(s). The judge decides on this. He decides whether a parent can still fulfil his or her role as a parent. For the sake of clarity: this is about the question whether a parent can still mean something for the child as a parent. The answer to this question may be 'no' while there is still contact in the form of an arrangement concerning parental access, for example.

Adoption by same-sex and different-sex couples
Adoption of a child in the Netherlands was already possible for different-sex couples and for one person. Now same-sex couples can also adopt a child. In this way, children who are being raised by two people of the same sex will have the legal protection they are entitled to in this situation. Whether partners are married is not important. However, immediately prior to the request they must have been living together for at least three years. And they must also have spent at least one year jointly caring for and bringing up the child.

Adoption by one person
One person can adopt a child in the Netherlands if he or she has cared for and raised the child for three years. In practice, adoption by one person will primarily involve a step-parent, but this is not necessarily so.

Step-parent adoption
In step-parent adoption, the new partner of one of the parents adopts the child. The family ties with this parent remain in existence. Only the family ties with the other parent (if that parent or that tie is present) are broken. In practice, the step-parent was often already living as a family with the parent and one or more children. The duration of cohabitation and caring for the child are therefor the same for the step-parent as for adoption by two persons. The step-parent must have been living with the other parent for at least three years and must have cared for the child for at least one year.

Duo mothers
In one case of step-parent adoption the period during which the child must have been cared for does not apply. This is the case when two women have a relationship and one of them has a child. The mother's partner may submit a request for adoption to the court immediately after the birth. This applies irrespective of the form of their cohabitation. However, they must also have lived together for three years.

Joint parental responsibility instead of adoption
Sometimes adoption is not possible or not desirable. In those cases, joint responsibility can be a solution. Since 1 January 1998 one of the parents may exercise responsibility for the child together with his or her partner (who is not the parent of the child). This may involve the mother and her girlfriend or boyfriend with whom she forms a family, or the father with his boyfriend or girlfriend with whom he forms a family. Joint responsibility gives the non-parent the same rights and duties of parental responsibility as it does the parent(s). He or she is then in all respects responsible for the care and upbringing of the child.

Procedure
Whether an adoption can take place is determined by the court. This is where an adoption request must be submitted. For this reason, the help of a lawyer is always required for the submission of an adoption request. To obtain joint responsibility, the parent and his or her partner must jointly submit a request to the court. The help of a lawyer is necessary in this case as well.

Recognition abroad
If two men or two women jointly adopt a child, this may cause problems abroad, particularly if they live there for a longer period or in the event of emigration. It is possible that the adoption is not recognised in the country in question.

If the adoption is not recognised in the country in question, this does not yet mean that the adoption will be presumed to have no effect at all. The adoptive parents will perhaps be accepted as the persons who have the responsibility for the child. Non-recognition of the adoption, however, will have consequences for the law of inheritance, for example. A will may be a solution in such cases. It is wise to take legal advice in plenty of time, either in the Netherlands or in the country of destination.

Inquiries
If you want more information or wish to order one of the booklets on family law, please contact the government information line:

Postbus 51 Infolijn
Tel. 0800 80 51 (freephone)
The line is open Monday to Friday from 09.00 to 21.00 hours
Website: www.postbus51.nl
E-mail: webmaster@postbus51.nl

Furthermore, there is a booklet entitled 'Choosing a surname', which is also available in English.