Joint Child Custody International Cases: German Lawyer

Marriages and relationships are becoming more international. As people work across borders and move to the different corners of the globe, family law becomes more global and, in many cases, more complex. This is especially the case when children are involved.

In German law, generally, both parents are given joint custody per § 1626 BGB, but the primary factor of consideration in such cases is “the best interests of the child“. We will outline what this means later in the article. Our article on “Child Custody in German Law” is where readers can find more information.

This page will examine how such joint custody affects “international” parents – so whereby the parents are not from Germany and in situations where the parents live in different countries. Like all family law cases, such cases can be more complicated than what appears on paper. If you find yourself in a conflict situation due to joint child custody with international elements, it might be worth contacting a legal professional. Our contact details are below this article.

Full Custody and Moving Abroad

Full custody can be granted to one parent if it is seen as in the child’s best interest for that one parent to be granted full custody. It may also be the case that where the parents are not married, the other parent does not seek joint child custody. However, if one parent has full child custody, it is viewed that they are acting in the best interest of the child, and for that reason, they can decide to move abroad with their child without needing to consult the other parent.

If the relationship between the parents and child is positive, it may be worth communicating the desire with the other parent even if their permission is not strictly needed.

The other parent still has visitation rights and rights of access to the child. This right applies even without full custody rights and even where the child has moved abroad. Courts can remove the right to access in cases where they believe it to be in the child’s best interest to do so. These types of cases are ones in which neglect, possible abuse or the risk of abduction play a role.

Considering Moving Child Abroad when Another Parent has Joint Custody.

If you have joint custody of your child with the other parent and are considering moving abroad, it is necessary to contact the other parent. Moving without consulting or considering the other parent will not reflect well should the case later be brought in front of a court. Consulting with the other parent may lead to them granting their permission for the move. In such a case, the move to the other country will be more straightforward. However, the other parent may also seek to block such a move, and such a decision may lead to the case ending up in a legal dispute.

If the case does become a legal dispute, it is advisable to be represented by an experienced legal professional in the field of family law. Such cases will examine what is in the child’s best interests and whether the move abroad is deemed to be so. Essentially the court does not want to allow for a move that may have been made for malicious reasons or for reasons that are not of benefit to the child. The court will take into account the following considerations:

• The bond between the child and the parent seeking a move,
• The bond between the child and the other parent,
• The continuity of their relationship with friends and family,
• The ability of the parents in question to raise the child,
• Whether there was malicious intent behind the move.

Moving to another country does not automatically prevent the other parent from having rights of access/visitation rights when it comes to their child.

Moving Abroad with Child without Consulting Other Parent

If a parent moves abroad with the child without consulting the other parent, they leave themselves open to possible charges of international child abduction. This may also be the case where the parent does not have joint custody or full custody and looks to make this decision. International child abduction cases are complex and especially in situations involving moving outside of the European Union. In such cases, please consult with a lawyer as such cases can have damaging consequences regarding custody rights, access rights and the relationships involved.

If you fear that the other parent will go abroad without waiting for the decision of a German family court or have reason to believe they will do without consulting with you, here is advice on how to proceed!

• Go to the family court and an urgent application a temporary injunction to stop the other parent moving abroad with the child – an exit ban
• then an additional application with the court to have the German Police issue a border block for the other parent
• file an application to the family court for the transfer of sole parental custody. With full child custody, you can prevent this from happening in the future.

It should be noted that once again, the best interests of the child will be the primary consideration when it comes to the allowance for sole custody. This is where attempts of international child abduction will be reflected upon badly within the court. Therefore, if you are unsure about your move abroad with your child and how to go about it, consult with the other parent beforehand. Also, consider consulting with a family lawyer if necessary. Do not take matters into your own hands until you have consulted with the other parties involved.

Moving to Germany: International Contexts of Child Custody

Child custody law differs depending on the jurisdiction. Some countries award full joint child custody to parents regardless of marital status; others take a different approach where marriage is more emphasised. The law in some countries also requires the other parent’s permission when it comes to leaving the country, even when they do not have joint child custody. Therefore, it is crucial to find out what the law is in your home country if you plan to move to Germany with your child. Failure to do so may result in difficulties or even detainment at the German border or future cases being brought against you.

When it comes to the enforcement of international decisions, mechanisms do exist. One such mechanism is The Hague Convention on the Civil Aspects of International Child Abduction, and another is Brussels II a Regulation. Such mechanisms govern international child abduction cases and the recognition of national court decisions when dealing with certain countries, especially those within the EU, the USA, China, and Russia. Cases can be resolved using these mechanisms.

However, for cases involving countries not signed up to these or other mechanisms, it becomes more complicated, and working with a family law expert is necessary.

Disputing the Move Abroad: What will the Court Consider?

If the move abroad is disputed and the moving parent still wants to move, the case may likely end up in front of the family court. When it comes to resolving such disputes, having an experienced legal professional at your side will increase your likelihood of success. This applies both for disputes in and outside of court.

As previously stated, the best interest of the child will be the main consideration in disputes. In a disputed move, this will take into account some of the following factors:

• Relationship with Parent: as we will see below, the relationship between parent and child does not stop once the child moves abroad. Therefore, although there may be less access to the child than would normally be the case, this may not be enough to prevent the move abroad. However, where separating the child from that parent may cause psychological damage to the child, the court may consider the move abroad to not be in their best interest.
• Destination of Move: the destination to where the parent wants to move the child may not be in their best interest. This may be the case when a parent attempts to move a child to a warzone or a place hit by a recent natural disaster.
• Family Considerations: should the parent consider moving the child to a location where they would be away from all family members and friends, the court may deem that such a move is not in the child’s best interest.
• Reason for the Move: if the move abroad is not in the child’s best interest at heart, the court may decide not to allow for it. If the reason is to get away from the other parent with joint custody, this may be a ground for the other parent to consider going for sole custody of the child. Additionally, if the parent is making a move solely for their sense of adventure or their own desires without considering the child’s desires, the court may also look unfavourably on this.

Please note: if you are looking to move abroad to escape from the other parent with joint custody, contact a legal advisor as soon as possible. If you believe that allowing the other parent to maintain joint custody or access rights places the child in danger, legal routes are available. Consulting with a  family lawyer may allow you to be granted sole custody and even limit or prohibit access rights. Do not act without considering your options and consulting a legal professional if necessary.

Accepting of the Move Abroad: Options Available to Other Parent

Not all cases end in dispute when it decides to move the child abroad. Open and honest communication can lead to both parents accepting that the move abroad might be right for the child and parent. This is why we would always advocate amicably resolving this matter when possible. However, even in the most amicable resolutions, the fact remains that the move abroad may reduce the opportunities that the other parent has when it comes to spending time with their child. The fact remains that the move abroad does not remove the other parent’s right to joint child custody. Here are some steps worth considering to prevent disputes from arising.

• Extended Holidays: If the other parent does not have access to the child regularly due to the move abroad, it is worth considering an arrangement whereby the child stays with that parent for an extended period of time during school holidays. This could be by a few weeks during the winter holidays and even an extra week or two during the summer.
• Access with Technology: In today’s environment where people can communicate instantly worldwide, there is no reason why a parent with rights of access should be denied them. Regular contact and communication between the parent and the child will, in most cases, be of great benefit to the child in creating a solid relationship between them.
• Visitation Access: Depending on the circumstances, the parents could work together to bring the other parent to the child. A visit to the new environment may help the child to feel more confident and comfortable.

Not all suggestions will be suitable in all circumstances, but maintaining the relationship between child and parent usually benefits children. If it is possible to work together and to create an accepting and positive atmosphere, it will prevent legal disputes from arising later.

Family Lawyer in Germany: Joint Child Custody Cases in Germany and Internationally

When it comes to resolving family law disputes, then look no further than Schlun & Elseven Lawyers.  Our team of lawyers has worked with clients from all over the world in resolving cases both inside and outside of the courtroom.

Contact us today if you would like more information about joint child custody and the international context. Once contact has been made, we can move from the theoretical into more specialist advice. Our offices are in Cologne, Düsseldorf and Aachen, and we have further meeting facilities in Berlin, Munich, Stuttgart, Hamburg and Frankfurt. If you have any further questions or queries, we can be reached by using the contact form below this article. Our lawyers look forward to working with you.