Child Custody Cases 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 joint custody is contrary to the child’s best interests, the mother regularly has sole custody, according to § 1626 a para. 3 BGB. Even if the two parents live separately, joint custody remains for the time being. If important decisions for the child’s welfare have to be made in this context, this must always be done by mutual agreement, according to § 1687 (1) BGB.

When a marriage or partnership breaks down, parents are usually faced with how they should exercise custody of the child in the future. Especially if the child is to have its centre of life with only one parent in the future, disputes can arise regarding custody, which are often only decided by a legal dispute.

The Youth Welfare Office (Jugendamt) is regularly involved, but its recommendations are not binding for the court. According to the legislator’s will, joint parental custody should, in principle, be exercised even after divorce or separation.

In the following situations, one parent may, in principle, have sole custody:

• voluntary relinquishment of custody,
• death of the other parent,
• joint custody is detrimental to the welfare of the child;
• the other parent is unknown or incapable of exercising parental care and the associated duties.

The simplest case without dispute is when one parent voluntarily relinquishes custody. The reasons for this can be manifold. For example, one parent may believe that this is the best solution for their child or that they are overwhelmed with the new situation. One parent can then apply to the family court for the transfer of sole custody, to which the other parent agrees, according to § 1671 (1), sentence 2, no. 1 BGB.

The situation is different if neither parent wishes to relinquish custody or both parents continue to insist on exercising custody. One parent will also apply to the family court to transfer sole custody. Unlike in the case of consent by the other parent, the court decides according to the child’s best interests, according to § 1671 (1) sentence 2 no. 2 BGB. As a rule, sole parental custody is only granted to one parent if joint custody is subject to considerable difficulties and joint custody is detrimental to the child’s best interests. In doing so, the court first examines whether the termination of joint custody is in the child’s best interests. In the second step, the court probes whether the transfer to the petitioner, in particular, is in the child’s best interests.

The aspects considered here are not cumulative but may be more significant depending on the individual case. According to established case law and the decision of the Federal Supreme Court of 15 June 2016 (XII ZB 419/15), these include:

• 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.

For the termination of joint parental custody, it must be considered whether there is a lack of basis in the relationship between the parents for cooperation in the child’s best interests. Such a situation may exist if the parents have sustained and profound conflict. Such a disruption in the level of communication between the parents must give rise to fears that the parents will not be able to reach a joint decision, which will place a considerable burden on the child when the parents have joint custody. The burden does not have to exist, but it is sufficient if there is a well-founded fear of this. However, if the parents are basically willing to cooperate, individual differences of opinion are not sufficient (see BGH v. 15.6.2016 XII ZB 419/15). Of course, the child’s best interests are vehemently endangered if there is violence or neglect by one parent (cf., for example, OLG Hamm, order of 13.08.1999 – 5 UF 106/99).

A minimum degree of agreement in essential areas of parental care and a sustainable social relationship between the parents is necessary for maintaining joint custody. For the decision to terminate joint parental custody, the individual case’s circumstances must always be considered in an overall assessment (cf. BGH v. 15.6.2016 XII ZB 419/15).

Overall, the family court may withdraw custody partially or completely. If custody is only partially removed, this may affect the care of the property, the right to determine the place of residence and the maintenance of persons. However, it is essential to know that there must be serious reasons for a parent to be deprived of custody or parts of custody.

In most cases, the child primarily lives with one of the two parents. However, this does not mean the other parent cannot see the child. On the contrary, both the child and the parent concerned have a statutory right of access (according to § 1684 (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, also in the context of the right of access, it makes sense to seek legal help to make suitable applications and ensure the child’s best interests. If the right of access is to be negotiated in the divorce proceedings, legal representation is even necessary per §§ 78 (1) ZPO, 114 FamFG.

The right to determine the place of residence is a sub-area of the right of custody and is listed in § 1631 Para. 1 BGB. According to this, the parents or the parent with sole custody are authorised to determine where the child is to stay. This includes provisions on the child’s place of residence or stays in the hospital. Unless otherwise decided, both parents are, in principle, jointly entitled to the right to determine the child’s place of residence. However, one parent may also apply for the sole right to determine the child’s whereabouts pursuant to § 1671 (1) BGB.

The parent who has the right of residence determines the child’s permanent place of residence and also the child’s habitual and actual place of residence. The right to determine the child’s place of residence is usually awarded to the parent with whom the child lives. According to § 1687 (1) sentence 2 BGB, the parent with whom the child habitually resides with the consent of the other parent or on the basis of a court decision has the authority to make sole decisions in matters of everyday life.

The distinction between matters of everyday life and matters of considerable importance is primarily based on the legal definition of § 1687 (1) sentence 3 BGB and, thus, on whether it is compatible with the best interests of the child (see OLG Braunschweig, order of 30.07.2020 – 2 UF 88/20). According to the provision, decisions in matters of everyday life are generally those which occur frequently and which do not have effects on the child’s development which are difficult to change. If, on the other hand, medical treatment on a larger scale, a change of school or similar significant decisions are involved, these must be made jointly by both parents.