German Law in the Field of Child Access Rights
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. We will summarise German child custody law and child visitation rights in Germany; however, our pages on these issues go into greater detail.
Joint custody is generally awarded to parents if they are married at the time of the child’s birth or are married soon afterwards. The mother is awarded custody at the time of birth and, in cases where the parents are not married, the father can apply for joint custody. The document granting joint custody should be signed at a child welfare office (“Jugendamt”) by both parents indicating the joint custody status.
Once a parent has joint custody, they must be consulted regarding the important matters concerning the child. Moving abroad with the other parent is one such incidence. Failure to consult with the other parent before taking such an action can lead to international child abduction cases. Moves abroad in such a scenario can prove difficult; please read our article: Joint Child Custody: International Cases for further insight into approaching such a situation.
In contrast to cases where joint custody exists, if one parent has sole custody, consultation with the other parent is not required. The court views that the parent they have awarded sole custody to is in the best position to make decisions for the child. However, a lack of custody rights does not mean that a parent does not have access rights or a right to contact. This contact right does not extinguish because the parent with sole custody moves the child abroad. A parent still has a responsibility to create a link with their child. The child also has the right to have a relationship with their parent.
European Law in the field of Child Access
From a European Union level, the emphasis is also placed on what is in the child’s best interests. Generally, this is held to mean that having access to both parents is in their best interest. However, this does not mean it is in an unlimited right. Like in German law, other jurisdictions are permitted to decide when not allowing access may be in the child’s best interest. The required limits for such a decision to be made in these cases will depend on the law within that jurisdiction. However, cases in which abuse has taken place or where the parent has neglected their child may lead to such decisions being made.
Regulation No 2201/2003 emphasises the mutual recognition of judgments decided upon in other European courts. Therefore, a decision made (for example) by a court in Portugal should be recognised in Germany. When it comes to which court makes the decision, it comes down to where the child is habitually resident. Even if the child was born in Germany but now lives in Spain and is habitually resident in Spain, the Spanish court will make the decision.
The Hague Convention on the Civil Aspects of International Child Abduction aims to ensure that custody rights and access are respected amongst the contracting states. The contracting states in this convention are an extensive list with all EU members, the USA, Russia, and China amongst them. However, the law within these jurisdictions will vary as to the requirements in place regarding family law.
Contact us directly with your case on this matter so that we can provide advice and counsel based on the specific requirements of the exact state/jurisdiction in question.
The Hague Convention on the Protection of Children contains further rules and guidelines on procedures to be followed and the level of competence exercised by the courts. It also guides the enforcement of decisions amongst the courts of the jurisdictions signed up.
This advice is essential when the case concerns a country that is not signed up to the Hague Convention. Professional legal advice and counsel is required in such situations.
Who has a Right of Access to Children?
This article has mostly been concerned with the rights of access for parents, but other family members also have a right of access under German law. These family members are outlined under § 1685 German Civil Code (BGB) where it states:
(1) Grandparents and siblings have a right to contact the child if this serves the child’s best interests.
(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 generally assumed that actual responsibility has been taken on if the person has been living for a long period in the domestic community with the child.
When it comes to foreign jurisdictions, the situation may change. In the European Union, Regulation No 2201 / 2003 concerns the right of child access and child custody within the European Union. When it comes to matters regarding the rights of grandparents and access to the child, the courts in the country of the child’s habitual residence make the decision. Once again, the emphasis on a European level is what is in the child’s best interest.
The ruling on this matter emphasised that the legislation was not designed to limit the persons to whom a right of access should exist. If others have or have had a close personal relationship, they may seek rights of access by applying to the responsible courts around the EU.
How to Approach International Cases: Rights of Access
Family law issues present challenges, and they tend to be very personal in nature. Relationships can be complicated between parents and even more so when they live in different countries. However, what must be central to all decisions on rights of access is what is in the child’s best interest. If the other parent is (or shows signs of being) abusive, neglectful, or feel that their having the right of access is not in the child’s best interest, then it is advisable to consult with a family lawyer.
However, in other situations, we would advise an amicable approach when deciding on matters relating to the rights of access. In contrast to situations where both parents have joint custody, a parent with sole custody can decide to move the child abroad unilaterally. We would advise having an open dialogue with the other parent about this move and why it is taking place in such a situation. From there, work together to create a plan to work out how their access rights can be respected.
Remember, in today’s world; technology allows parents to connect with their children wherever they are in the world. Visitation rights can be respected through arranged times by which parents can use Skype or another platform to keep in regular contact with the child.
Working together, the parents can arrange for the child to visit the person with access rights and vice versa. The parent with sole custody is the one who will make the biggest decisions in the life of the child, but working collaboratively with the other parent on visits and such will ensure that a strong bond can remain in place between parent and child. This is normally a move that is in the best interest of the child.
Family Law Attorney in Germany
Family law cases present unique challenges. The fact that families and relationships are becoming more and more international can complicate cases further. For this reason, having a competent and knowledgeable family lawyer to help you in complicated situations is increasingly invaluable.
Our attorneys can provide you with the information you need when it comes to German family law in English and German to ensure that we do not get lost in translation. From our offices in Cologne, Aachen and Düsseldorf, we work with clients worldwide. If you require more information or specialist representation in your case concerning access rights in international situations, please contact us today using the form below. Our legal team looks forward to working with you.