Types of Cases and General Guidelines
All cases are different and as stated above the facts of the situation play a very important role in the court’s decision. However, there are some situations in which we can provide a basic outline for here. In this article three situations regarding child support will be outlined: domestic cases, cases involving a parent living outside of Germany with the child in Germany and cases where the child has moved to another country but the parent has stayed in Germany. The law in this field will be provided for below before we delve into more detail in these three distinct case types.
Who is Liable for Child Support?
The German Civil Code (Bürgerliches Gesetzbuch – BGB) provides the basic regulations when it comes to the issue of child support. It is regulated between §1601-§1615 of the BGB as this section outlines who is liable to maintenance payments, how they should be calculated and when they should be paid. The BGB states that lineal family members are obliged to maintain each other which of course includes the parents of underage children. It also provides that greater urgency is placed on those in the descending line (parents to children.)
In terms of adult children it depends on the stage of development they are at. The child support tends to end when the child has completed their education and is earning their own wage. It is of value to note that this requirement is held to mean when the child is able to support themselves – therefore summer jobs and paid internships do not count in this matter. This means that the child support may continue on beyond the age of 18. In cases where the child has a disability or issues preventing them from working it is worth seeking legal assistance and outlining the case in detail.
In such cases it is important to establish that the person in question is in fact the parent of the child. When it comes to stating who the father is §1592 of the BGB provides the outline by telling us it can be measured as:
- a) the man married to the mother at the time of birth,
- b) the man who has recognised and signed the paternity acknowledgement and/or,
- c) where a court has recognised the man as the father of the child.
It is of value to note that the court does not merely accept the statement of the mother without evidence on the matter. It is also the custodial parent or primary caregiver who should bring the case forward regarding child support.
How Much is the Parent Liable For?
In the event of the parentage of the child being established, the issue of liability plays a role. In this area the facts of the case play the most important role. The BGB outlines that the parent in question needs to be able to support themselves as well as support the child(§1603 BGB). Should this be established then the German courts tend to use what’s called the Düsseldorfer Tabelle as a rough estimate of what a parent should be paying. This calculator works out the amount owed based on the parent’s earnings per month, the earnings of the primary caregiver, the extra requirements necessary for maintenance of the child etc. The Düsseldorfer Tabelle will be used alongside other guidelines provided in the family courts. However, it is worth noting that the court will deal with issues on a case-by-case basis. Although the Düsseldorfer Tabelle provides a good outline the court will decide the amount owed based on the facts of the case.
Case Type 1: Domestic Child Support Cases: German Citizens in Germany
These types of cases are generally the most straightforward. The German court system can hear cases involving German citizens as well as with people residing in Germany and parents of German citizens. These cases will be heard in front of domestic adjudicators, although it may be preferable for the parties to resolve these issues outside of court. Regardless of whether it is inside or outside of court availing of legal assistance is advisable in order to ensure that you have the right supports in place. Appropriate legal assistance will provide reliable legal counsel as to your best course of action. Such cases can be resolved privately between the parties without the requirement to go to court. Some of these cases do end up in front of the courts.
Should the court decide in favour of the primary caregiver the courts generally use variations of the Düsseldorfer Tabelle to decide on the amount that should be paid. This will analyse the parent’s working situation, their monthly income, the living standards of the child in question and other factors. As well as that, the courts will focus on the child’s age and the stage of life they are in. If the child is at a stage where they can pay for themselves a different ruling is likely compared to a younger child or even a child with difficulties preventing them from supporting themselves. The courts will rule on whether the party is liable for child support, the amount owed and the frequency of the payments that need to be made.
Case Type 2: International Child Support Case: Parent Abroad & Child in Germany
Whereas the strictly domestic cases can be generally straightforward, those involving international aspects are more challenging. In the next two cases it is very important to bear in mind in which country and jurisdiction the child or parent is in. If the parent is in the USA for example, the courts in most US states will follow and enforce the judgment of the German courts. This is due to a reciprocal arrangement between the two jurisdictions that applies for most states. This reciprocity also extends to South Africa and most of Canada.
When it comes to other jurisdictions it is worth analysing whether the country in question is part of the Hague Protocol for Child Support. If the country in question is within the confines of this arrangement it is more likely that a judgment made in Germany will be followed by a court in the jurisdiction in question. The members of this arrangement include all EU members, Russia, Saudi Arabia, Brazil, Australia and New Zealand.
When it comes to bringing such cases it is possible that the claiming party may be able to obtain assistance from the Jugendamt (child welfare officer) in Germany as well. The claiming party could present their issues to this body in order to determine whether they may be of assistance. However, it is important to get legal advice and an attorney in determining whether such a step is necessary or worthwhile. In international cases, German courts are still likely to use the Düsseldorfer Tabelle as a basis by which to measure the amount of liability that is attributable to the parent in question.
Case Type 3: International Child Support Case: Parent in Germany & Child Abroad
These child support cases are similar to Case Type 2 above. In these instances it is important to bear in mind where the child is now based. Once again, some jurisdictions have reciprocal arrangements with Germany and will enforce the law as provided by the court in Germany in that jurisdiction. Similarly, if the case is brought in the other jurisdiction the German courts will enforce that judgment in Germany. The issues surrounding the Hague Protocol play a role here as well and once again it is worth researching whether the country in question is part of that arrangement.
Some of the countries signed up to the arrangement include (but are not limited to): the members of the EU, Brazil, Australia, Saudi Arabia, New Zealand, Russia and China. These countries are more likely to implement a decision made by a German court in a matter concerning child support. In cases involving German citizens (especially in the case of the child being a German citizen) abroad the German courts can be used to resolve the issue. The factors mentioned before such as establishing paternity, using the Düsseldorfer Tabelle, examining whether the party is liable and deciding on the amount owed (if applicable) can be decided by the German courts.