One aspect of divorce, specifically for divorcing couples who have children, is what are
the legal impacts of divorce on the children? There are several facets pertaining to children that must be
addressed during the divorce. These include but are not limited to: (1) parental custody; (2) visitation;
(3) residence of the children and (4) child support.
Parental custody is the rights and duty of the parent to take care and educate his/her minor children. Under care and education are also understood the concern and responsibility for the spiritual and physical welfare of the child and promoting the development of his/her personality. With the parental custody, you are actually the legal representative of your children and you decide, i.e., which school/church/sports club your children will attend, which family doctor/dentist will treat your children, whether your children are allowed to travel with the other parent (hereby it doesn’t matter whether the other parent also has parental custody), etc.
When only the motherhood has been established, or, when the biological father and biological mother of the child are not married to each other at the moment the child was born (and the parental custody has not been granted by the Court to the biological father), the Civil Code stipulates that the mother of the child has the sole parental custody over the child.
Parental custody should not be confused with the acknowledgement of a child (erkenning). Many people think that acknowledgement of a child automatically constitutes the parental custody over the child. This is incorrect. In order for a father to get parental custody over a child (in the event he is not married to the child’s mother at the moment of the child’s birth), the father has to request the parental custody at the Court in First Instance of Sint Maarten. When the Court grants this request, the parental custody will subsequently be registered at the Court and the parental custody will only go into effect from the moment of the registry.
During a marriage, the parents automatically have joint parental custody over their child(ren). After the marriage ends, other than by death or divorce from “bed and board” (scheiding van tafel en bed), both parents can submit a joint request at the Court in the event they wish to have the joint parental custody maintained.
The Court will reject such request if there is a reasonable fear that compliance to that request will lead to the neglect of the interest of the children. If the request is not submitted or has been rejected, it is up to the Court to decide which parent will have the parental custody after the marriage has been dissolved.
Visitation - When married parents – who have children together – decide to dissolve the marriage, it is important they agree on a clear visitation arrangement. Such arrangement can be entered into in writing or even verbally. The parents are free to make a visitation arrangement and stipulate the conditions in it. The most important is that the children agree with the visitation and that the arrangement is in their best interest. The visitation arrangement stipulates for example:
- The frequency of the visit by the children at each parent per week/weekends/months
- The alternative visit by the children at each parent during holidays
- The (equal) division of the visit by the children at each parent during summer vacations, whereby the division will be determined and discussed between the parents each year
- The visit by the children on the birthday of their parents, on Mother’s Day and Father’s Day at the parent in question
- That the children’s birthday shall be attended by both parents
If parents can’t reach any consensus over the visitation arrangement, then it is up to the Court of First Instance – at the request of (one of) the parent(s) – to determine how the visitation will be arranged and on which conditions. When the children in question are at least 12 years old, the Court can decide to hear the children and the opinion of the children in question will be taken into consideration in order to give a final decision.
Residence of the children - The Civil Code stipulates that minor children follow the domicile of the parent who has the parental custody over them. In the event both parents have parental custody and do not have the same residence anymore (due to the divorce), the children will follow the domicile of the parent with whom they actually reside or resided recently. However, the parents can decide (in writing or verbally) to differ from the Civil Code regarding as the main residence of their children.
Child support - After the marriage is dissolved, the parents will remain obliged to pay the costs of care and upbringing of their minor children (even when the minor child is for example 17 and already working a few days per week). For “children” (or better yet “young adults”) from the age of 18 to 21, there is a special situation, because from the moment a child reaches the age of 18, he/she is officially an adult and therefore legally competent to act on his/her own behalf. This means that the parents do not have parental custody anymore over their young adult son/daughter. However, the parents are still obliged to pay the costs of livelihood (and study) of their son/daughter who hasn’t reached the age of 21 yet.
Please note that the content of this article is general in nature and intended strictly for informational purposes.
From Luciano M.G. Dundas, attorney at law and associate
BERMON LAW OFFICE & LEGISLATIVE SERVICES
Front Street 6, Suite 3, Philipsburg, Sint Maarten
Tel: (+1721) 542-5088/542-5074/543-7827/542-3558
Fax: (+1721) 542-5087
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