The issue of a child’s surname can become contentious following separation or divorce. The child’s name contributes to its identity, sense of belonging, and social recognition, but if this name differs from that of their main carer or siblings, this can lead to practical and emotional problems. The parent caring for the child may seek to change or add their name to the child’s surname. But what if the other parent refuses to cooperate?

Joint Custody

In most legal systems, both parents share joint custody of their children. Typically, a change of a minor child’s surname requires the consent of both parents. 

If one parent withholds consent, Dutch law provides a mechanism known as substitute consent (‘vervangende toestemming’). The court can grant consent in the other parent’s place by court order for custody decisions regarding the child. However, the court procedure itself does not lead to the child’s surname being changed, as we will explain.

Legal Framework

According to Dutch law, a child receives a surname at birth. Parents can choose which of the parent’s surnames the child receives. Since 2024, the parents can also choose that the child receives both of their surnames at birth. 

Changing a surname later on is only possible under certain strict conditions. This is not a court decision, but is decided by the Dutch Ministery of Justice, Dienst Justis. The name change is achieved by a royal decree. The grounds for changing a child’s surname are summed up in this brochure. An English resume is provided here on our website.

The ‘A1’ ground determines that a child can receive a combined surname or the surname of the main carer. Particularly a combined surname can be desirable after the divorce, but this is only possible if both parents agree to the change.

If the child is under 18, the request for a last name change must always be submitted by its custodial parent(s) or legal guardian. 

Substitute permission from the courts to apply for a name change

Going to court for substitute permission to apply for the name change is currently advised by Justis on its website if there is joint parental custody. However, this is not entirely correct. 

The Court of Appeal of The Hague determined just this September that surname change is not a custody issue, but rather a separate administrative procedure not covered by family law. In practice, this would mean that consent cannot be requested through the court under normal custody legislation. However, the court did make a ruling in favour of the mother requesting a combined name. 

In the court’s opinion, the law lacks a specific provision under which the request prescribed by Justis —substitute permission for submitting an application— can be submitted to the court. The court realizes that, without her request being granted, the mother is unable to submit a request pursuant to Article 1:7 of the Dutch Civil Code and cannot ask Justis to change [the minor’s] name. Since the mother’s request aligns with other cases that are regulated by law but lack direct application here (Articles 1:253a and 1:253i of the Dutch Civil Code), the court will nevertheless consider the mother’s request. The court will grant the mother’s request, as she has a right and interest in submitting the application to Justis so that it can be assessed on its merits.

This ruling now provides a clear precedent to apply for substitute consent for the surname change application, in spite of it not being regulated in law. 

Procedure for substitute consent

The request for substitute consent must be filed with the family court through a petition procedure. For this you will need a lawyer. If the child is 8 years or older, the court will invite the child to give its opinion on the request. Both parents are given an opportunity to present their case for and against the permission. The court may also request an advisory report from the Child Protection Board (in Dutch: Raad voor de Kinderbescherming) regarding the impact of the proposed name change.

If the court grants the request, the judicial decision substitutes the missing consent for the application. The parent may then proceed with the surname change through the official administrative procedure via Dienst Justis. Only if the application then meets the criteria of Dienst Justis, will the name change finally be processed. The other parent will also be heard in the Dienst Justis procedure, so the name change is still not a given, even with judicial permission.

If you have questions about the above or need advice about changing your child’s surname, please feel free to contact us.

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