Parental custody and the associated right to determine the place of residence are a legal field in Germany that involves difficult decision making with profound consequences for the family life. Especially, when there are different interests between the parents, it shows how multi-layered the practical execution of this legal field can be.
The guideline of this legal field is child welfare. Which factors determine the child’s welfare and how these are to be factored in require a fundamental legal understanding as well as empathy for interhuman dynamics.
Joint Custody in Germany
In principle, both parents are entitled to joint custody in the case of married couples, according to § 1626 BGB. The situation is somewhat different for unmarried parents: In this case, the parents must either make declarations of custody, marry or joint parental custody must be transferred by the family court, according to § 1626 a para. 1 BGB. This is the case if such a transfer is not contrary to the best interests of the child.
If both parents have joint custody, it will remain even in case of separation. If important decisions for the child’s welfare have to be made, it must be done by mutual agreement, § 1687 (1) BGB. The child’s welfare is upheld when it is ensured that the child’s needs are in harmony with their current living circumstances. The behaviour of both parents, as well as of other participants in the child’s life, is also factored into the child’s welfare. If the parents are not married, and there is no constellation of joint custody, the mother will have sole custody, § 1626a 3 BGB.
Sole Child Custody Rights in Germany
The situation is different if neither parent wishes to relinquish child custody or both parents continue to insist on exercising custody. In this case, one parent will also try to ask for sole custody, § 1671 I BGB. The court examines if joint custody can no longer be exercised due to the child’s welfare. If it comes to the conclusion that it cannot, it will reach its decision under the following criteria:
- The suitability of the parents to raise the child,
- the child’s attachment,
- the principles of support and continuity, and
- respect for the child’s wishes.
The family court can withdraw the custody right party or altogether. If it is only partly withdrawn, it may affect the care of property, the right to determine the place of residence and the maintenance of persons. However, there must be serious reasons for a parent to be deprived of custody or parts of custody.
Withdrawal of Joint Child Custody in Germany
The situation becomes more complex when neither parent is willing to relinquish child custody, or both insist on maintaining joint child custody. In such cases, one parent may petition the court for sole custody, § 1671 (1) BGB. The court will assess whether joint custody is no longer viable due to concerns about the child’s welfare. If so, it will base its decision on the following factors:
- The ability of each parent to provide proper care and upbringing,
- The child’s emotional attachment to each parent,
- The principles of stability and continuity, and
- The child’s expressed wishes.
While there are common patterns in such cases, the court evaluates each family’s unique circumstances to reach a decision prioritising the child’s best interests.
The family court may withdraw specific parental rights rather than full child custody. A partial withdrawal could affect responsibilities such as managing the child’s property, making decisions about their place of residence, or ensuring financial support. However, revoking child custody in Germany—whether fully or partially—requires serious justification.
Parental Authority Over a Child’s Place of Residence in Germany
The right to determine a child’s place of residence is a key aspect of parental custody and is outlined in § 1631 (1) BGB. This right allows parents—or the sole custodial parent—to decide on the child’s usual place of residence, domicile, and temporary stays. It also includes the authority to impose restrictions, such as curfews or travel limitations, in certain legal circumstances.
Unless otherwise decided by a court, both parents generally share this right. However, one parent may apply for sole decision-making authority regarding the child’s residence under § 1671 (1) BGB.
According to § 1687 (1) BGB, the parent with whom the child primarily resides—either by mutual agreement or court order—has the authority to make independent decisions on everyday matters.
The distinction between routine daily decisions and significant matters requiring joint parental approval is defined in § 1687 (1) sentence 3 BGB. This distinction in practice is guided by the child’s best interests (OLG Braunschweig, order of 30.07.2020 – 2 UF 88/20). Routine decisions include matters that occur frequently and have no lasting impact on the child’s well-being. However, both parents must jointly make significant decisions, such as extensive medical treatments, a change of school, or relocation.
Access Rights of the Other Parent When Sole Custody Is Granted
In most cases, the child primarily lives with one of the two parents. In these cases, both the child and the parent concerned have a statutory right of access, § 1648 (1) BGB, which also means a duty of contact for the parent. The right of access does not ensure that both parents have an equal share in the child’s life. It is intended to serve the child’s welfare and reasonable development (OLG Köln, order of 14.03.2012 – 4 UF 235/11).
The family court decides how exactly this right of access is structured and when it can be denied entirely for serious reasons. According to § 1684 (3) sentence 1 BGB, it can decide on the scope of the right of access and regulate its exercise in more detail, also vis-à-vis third parties. The family court may restrict or exclude the right of access or the execution of earlier decisions on the right of access under § 1684 (4) BGB insofar as this is necessary for the child’s welfare.
Thus, it makes sense to seek legal help to make suitable applications and ensure the child’s best interests, also in the context of the right of access. If the right of access is to be negotiated in the divorce proceedings, legal representation is even necessary per §§ 78 (1) ZPO, 114 FamFG.
An Overview: Frequently Asked Questions about Child Custody in Germany
With shared custody, all parental rights and duties apply to both parents. They share the respective rights, meaning they have to make decisions together and consult with each other. Details of shared custody can be set out in a parental agreement or by court order.
The interests and welfare of the child are decisive. The court pays attention to the child’s relationship with each parent, assessing parenting skills, stability, living environment and similar factors. Sole custody is assigned in accordance with the best interests of the child, but shared custody is generally assumed. Sole custody is assigned as an exception in special cases. Psychological reports are regularly used to justify the need for sole custody. In such a situation, an experienced family lawyer should be consulted to discuss the exact procedure (and, if necessary, the available defence options).
The rights all exist between parents and their children but are to be treated differently in legal terms and can also be enforced independently of each other. Custody rights describe parental responsibility. It includes aspects such as upbringing, healthcare, and education. The right of residence refers to the right to determine the child’s whereabouts and place of living. The right of access is a right of contact, especially for the parent with whom the child does not live.
As a rule, the parent who has custody of the child also has the right to determine the child’s place of living. However, the right of residence can also be separated from (other) custody rights. If the parents as joint custodians cannot agree on the right of residence, only one parent can be awarded the right of residence independently of the other custody rights. The best interests of the child are also the decisive factor when deciding on sole rights of residence.
Who the child lives with is not decisive for the right of residence. As a rule, the right to determine residence is based on the allocation of custody rights. However, this is also separate from who the child lives with. The child can live with the mother, while the parents share custody and the right to determine residence. Irrespective of the right of residence, the father with whom the child does not live or the parent with whom the child does not live at least has a right to contact with the child.
Primarily, parents have a right of access, i.e. the right to have contact with their child. This right exists independently of custody or residence rights. Grandparents or other close relatives may also have a right of access to the child. The right of access is intended to ensure that a relationship with the parents remains in favour of the child and that the child’s emotional and social development is encouraged in the best possible way. Individual contact arrangements can be agreed between the parents or by the court. To prevent unnecessary disputes, it is advisable to draw up a contractual contact arrangement with the help of a family lawyer, which stipulates how and when the parent with access rights has contact with the child.
No. The parent without custody is entitled to contact rights. Access rights are independent of custody rights. Contact rights and their limits are determined by the court and are only restricted or prohibited if contact with one parent jeopardises the child’s welfare. However, this is an absolute exception. If such a case arises, it is highly advisable to consult an experienced family lawyer regarding the available options for action.
A breach of an ordered contact arrangement in Germany has significant legal consequences. The orders of the German family courts are legally binding, and both parents are expected to accept the conditions laid down. Intentional violations can lead to criminal charges, possibly even charges of child abduction.
In case of acute danger, you should immediately contact the police and apply for temporary protective orders. As a general rule, you should also inform the youth welfare office and, in a further step, seek legal assistance. They will inform you and review further options for you.
Practice Group: German Family Law
Practice Group: German Family Law
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