Enforcement of International Rights of Child Access and Custody in Germany

Binational families have long been the norm in our globalised world, and this is also the case in Germany. As a result, international family law issues are increasingly becoming the subject of legal practice. There is often a need for clarification regarding rights of child access. This is because both parents usually have this right, even if one parent has sole custody and lives in another country. The legal situation is further complicated by the fact that other family members may also be entitled to child custody in addition to the parents. Experienced legal advice is usually required to achieve a sustainable solution for the benefit of the children in such a situation.

The German law firm Schlun & Elseven Rechtsanwälte offers comprehensive support in all German family law matters, especially those with an international aspect. Our lawyers have the expertise and empathy to make these emotionally challenging situations as comfortable as possible for you and your family. If you have questions about child custody, residence or other family law matters and would like personalised legal advice, please do not hesitate to contact us.

Parental Custody Rights in Germany

German law applies in cases where the child resides primarily in Germany. In such cases, the law does not discriminate if the parents themselves are not German citizens.

Joint custody is generally awarded to the parents if they are married at the time of the child’s birth or marry shortly afterwards. In any case, the mother receives custody at the child’s birth. The father can apply for joint custody if the child’s parents are not married. The document granting joint custody must be signed by both parents at the child welfare office (“Jugendamt”) stating the status of joint custody. If the parents share joint custody, both parents have a say in important matters and significant decisions concerning the child.

This is also the case when one parent moves abroad with the child. If the other parent is not consulted before such an important decision is made, it may lead to a legal case of international child abduction. If one of the parents is about to move abroad, you are welcome to contact our family and immigration and residence lawyers. We will inform you of all German custody and access law aspects relevant to your situation and work with you to explore different solutions.

If one parent has sole custody of the child, it is not usually necessary to consult the other parent. The German family court considers that the parent who has been granted sole custody is best placed to make important decisions for the child. However, the absence of custody does not automatically mean that the other parent no longer has a right of contact. Even if the parent with sole custody moves abroad with the child, the right of contact does not cease. On the contrary, the parent’s responsibility and obligation to maintain contact with the child, as well as the child’s right to a relationship with both parents, remain.

Parental Custody Rights under European Law

European Union law also emphasises the child’s best interests relating to parental custody, which is generally understood to mean custody and access by both parents. Again, this does not mean that this is an unrestricted right. The legal systems of the member states may, as in German family law, provide for rules as to when the restriction of rights of custody and contact may be in the best interests of the child. Depending on the individual case and the legal system, this may lead to different limits for the permissibility of such a restriction. In particular, in cases where the child has been neglected or even abused, the parents may face the withdrawal of custody and access rights.

EU Regulation 2201/2003 emphasises the mutual recognition of court decisions made by other family courts in European member states. For example, family law decisions made by a court in Portugal must also be recognised in Germany. The decision as to which court has jurisdiction over a child’s custody depends on where the child is habitually resident. For example, if the child was born in Germany but habitually resides in Spain during the relevant period, the Spanish family courts have jurisdiction.

If a family law decision made by a court in a member state breaches EU law or public policy, the case can be referred to the European Court of Justice, which will decide on it again.

International Family Law Provisions

The Hague Convention on the Civil Aspects of International Child Abduction aims to ensure that rights of custody and access are respected and recognised between Contracting States. The list of contracting states is extensive and includes all EU Member States, the USA, Russia, and China. However, the provisions within these legal systems vary considerably regarding the applicable family law requirements. The Hague Convention on the Protection of Children contains further rules and guidelines on family court proceedings and the jurisdiction of the relevant courts. It also includes guidelines on the enforcement and execution of court judgments concerning the legal systems of other contracting states.

This is particularly important in cases involving a state that has not acceded to the Hague Convention. In such cases, professional legal advice and representation is also strongly recommended.

Right of Access of other Family Members and Closely Related Persons

In addition to the parents, other family members also have an independent right of access under German family law. This is regulated in Section 1685 of the German Civil Code (BGB), which states:

(1) Grandparents and siblings have a right of contact with the child if this serves the best interests of the child.

(2) The same applies to persons to whom the child relates closely if these have or have had actual responsibility for the child (social and family relationship). It is in general to be assumed that actual responsibility has been taken on if the person has been living for a long period in domestic community with the child.

In foreign legal systems, the legal situation regarding family members’ rights of access may be different. In European Union law, Regulation 2201/2003 has been issued, which concerns custody and access rights for children within the European Union. According to this Regulation, the country’s courts of the child’s habitual residence decide on issues relating to grandparents’ rights of access to the child. The focus at the European level is also on what is likely to be in the child’s best interests.

In a corresponding court decision, it was emphasised that the regulation is not intended to restrict the persons for whom rights of access exist in principle. Other family members or persons with a socio-familial relationship with the child may apply for rights of access and may seek the assistance of the competent courts of the European Union.

How to Approach International Cases: Rights of Access

Family law matters are often very challenging as they tend to be of a very personal nature. The relationship between parents can be complicated, which is made even more difficult when they live in different countries. The best interests of the child must always be at the centre of any decision about custody and access. If there are factual indications that the other parent is neglecting or abusing the child, or if there are other indications that they are not acting in the best interests of the child, it is advisable to consult an experienced family lawyer.

However, an amicable approach to deciding custody and access is recommended in other situations. Unlike situations where both parents have joint custody, a parent with sole custody may unilaterally decide to move abroad with the child. In such situations, we advise an open dialogue with the other parent and a justification and explanation of the intended move abroad. You can then work out together how to implement mutual rights of access across national borders.

It should also be remembered that in today’s world, with many technologies and platforms, it is possible to be in regular contact with your children from anywhere in the world. Visiting rights can also be arranged by agreeing times in advance. In this way, the child’s relationship with the non-custodial parent can be maintained, even if the parent with sole custody makes the major decisions in the child’s life. In principle, this is in the best interests of the child.

Schlun & Elseven Rechtsanwälte: Comprehensive Family Law Support in Germany

Due to their complexity, international family law cases involving Germany often present a significant legal challenge. It is, therefore, advisable to consult a knowledgeable and experienced family lawyer who can advise you in such complicated situations with an international dimension. If you require further information or expert representation in the area of international child custody and access law, please do not hesitate to contact us.