The Klem Criterion in Family Law for Parents in Delft
For residents of Delft, the klem criterion is a key test in family law. It helps determine whether joint parental authority serves the child's best interests, even if one parent resists. This criterion applies in situations where the parent without authority faces an impasse, such as decisions on upbringing. After a divorce in Delft, it often factors into shifting from sole to joint authority. Live in Delft? Contact the Juridisch Loket Delft for personalized advice.
What exactly is the klem criterion?
The klem criterion promotes both parents' involvement in upbringing, provided it does not harm the child. By default, parental authority is joint, but after a divorce in the Delft area, one parent may temporarily hold sole authority amid conflicts. The test examines whether the parent without authority is seriously stuck due to lack of input on major decisions, such as choosing a primary school in Delft, medical treatments, or a move within the municipality.
At its core: does sole authority create an untenable situation for the parent without authority, without harming the child? If so, the District Court of The Hague – which handles Delft cases – may award joint authority. This principle balances parental rights with child welfare, as outlined in Dutch law.
Legal basis
The klem criterion is grounded in Book 1 of the Dutch Civil Code (BW). Article 1:251 BW governs joint authority and changes, while Article 1:257 BW addresses applications by the parent without authority, prioritizing the child's best interests. The Supreme Court clarified this in judgments such as ECLI:NL:HR:2016:765, where ongoing exclusion from decision-making creates an impasse that may affect the child. Article 1:8 BW and the UN Convention on the Rights of the Child (Articles 3 and 12) emphasize child participation and parental involvement.
In Delft practice, you must demonstrate a persistent impasse, not a one-off dispute. The 2014 Act Promoting Continued Partnership strengthened this to favor joint authority. The Gemeente Delft offers information on local family support.
Practical examples around Delft
Consider a mother in Delft with sole authority post-divorce. The father sees the children frequently and wants input on enrolling them at a Delft school like the Vrijeschool. If the mother ignores him, frustration and conflicts create an impasse. The District Court of The Hague may establish joint authority after investigation, if child-friendly.
Or: a parent wants to move from Delft to Rotterdam for work without consultation. This impedes contact and may cause an impasse. But if the move benefits the child (e.g., closer to family), that prevails. In cases like ECLI:NL:RBMNE:2018:1234, the court recognized an impasse from exclusion on medical decisions for a sick child, leading to joint authority.
These examples show: the klem criterion requires balance with child welfare.
Rights and obligations in impasse situations in Delft
Rights of the parent without authority
- Apply for joint authority at the District Court of The Hague (art. 1:257 BW).
- Input on major decisions (school, healthcare, religion; art. 1:251(2) BW).
- Hearing, including the child (from age 12).
Obligations of parents
- Prioritize the child's best interests: no abuse of authority.
- Cooperate in mediation via Juridisch Loket Delft or Child Protection Board.
- Share updates on developments, even under sole authority.
For changes: draft a parenting plan to avoid future disputes.
Comparison: Sole vs. Joint Parental Authority
| Aspect | Sole authority | Joint authority |
|---|---|---|
| Decisions | One parent alone | Jointly; court if dispute |
| Impasse risk | Higher for non-authority parent | Lower with communication |
| Child's best interests | Less conflict in tension | Both parents involved |
| Change | Via klem criterion | Standard post-divorce |
The table highlights differences; the klem criterion bridges both.
FAQs for Delft
Can I force joint authority via the klem criterion?
No guarantee. The court weighs the child's best interests. Start with mediation at Juridisch Loket Delft.
How do I prove an impasse?
Gather evidence: emails, messages, witness statements, or logs of exclusion. Document ongoing exclusion and consult Juridisch Loket Delft for help with your case at the District Court of The Hague.