Child Access, Custody and Support Legal Issues
Significant questions arise regarding child custody, access and support following separations and divorce. Generally, in cases of child custody, “the best interests of the child” is seen as the general rule to follow. Usually parents (if they were married) are given joint custody, but this is not always the case. Parents can voluntarily relinquish their rights to joint custody, and a parent can challenge for the withdrawal of joint custody if they deem the other parent’s custody as “harmful” to the child. Such harmfulness may be found in cases of domestic violence.
Even if a child does not live with a parent following divorce or separation, that parent is generally provided with child access rights. It should be clear that the right to access and visitation is not limited based on marriage or lack of marriage on the part of the parents. Allowing parents to have the right of access to their child means that they can be connected. Under German law, they are entitled and obliged to contact their children. However, the right is not unconditional, and it can be withdrawn. Courts in Germany have a right under § 1684 (4) BGB to “restrict or exclude the right of contact”, in cases where “best interests of the child would be endangered“. Such endangerment includes cases of physical or sexual abuse of the child, neglect or alienation, alcohol/drug abuse within the household and the risk of (international) child abduction.
With an increase in marriages involving partners from different nationalities, the threat of international child abduction cases also increases. In such cases, a parent can bring a child to another country and not return them in the agreed manner. Some parents may try to go against custody agreements by keeping their child away from Germany. Such a move can cause distress for the other parent and for the child or children involved. In such cases, it is crucial to consult with an experienced family lawyer regarding possible actions that can be taken.