Questions on the Issue of Child Custody in Germany
When it comes to the issue of child custody we receive many questions from our clients. Some questions are easier to deal with than others and below listed are some of the answers to some of the more straightforward issues. Whereas the answers here appear to be clear we are fully aware that cases are dependant on the circumstances surrounding them. Behind the cases are human stories and it is of course advisable to contact specialised lawyer for Child Custody in Germany when dealing with your own situation.
Question 1: Where Can I Find the Legal Basis for Child Custody in Germany?
The law relating to child custody is regulated for in the German Civil Code (Bundesgesetzbuch – BGB) and in particular by §1626 BGB. This section outlines clearly the requirements relating to child custody in a number of areas stating that it is the parents who have the duty and right to care for the minor child (§1626 (1)). In general, both parents are provided with access to the child as this section states that the child should benefit from living with both parents.
Question 2: What are the Laws in Germany Relating to Divorced/Separated Couples and Child Custody?
In Germany there is a preference within the courts and in the law to keep families together as regards parents and children. In general, in the case of married couples both mother and father provided with joint custody of the child. The topic may not even be brought up by the court unless one parent brings it up as an issue. However, as we will see below, there are cases where such joint custody can be severed in favour of sole custody. These cases occur in the event where the court deems the best interest of the child to be served by allowing one parent to have sole custody. The meaning of the phrase “best interests of the child” will be explained in more detail in question four.
Question 3: What are the Laws in Germany Relating to Unmarried Couples and Child Custody?
When it comes to the custody of children in cases involving unmarried couples, the mother of the child is automatically given custody of the child. However, should the parents subsequently get married they will be granted joint custody due to that union. On the other hand, when couples with a child (or children) do not wish to get married they can instead sign a declaration of parental custody which will grant both mother and father joint custody of the child. This document must be signed in a child welfare office (“Jugendamt”) by both partners.
Conversely, there may be cases where one partner wishes to obtain sole custody of the child and prevent the other parent from obtaining joint custody. German courts are reluctant to grant these demands. Therefore, it is the responsibility of the claiming party to prove that joint custody is not in the best interests of the child. What the best interests of the child refers to is explained next.
Question 4: What Does “The Best Interests of the Child” Mean and When Does it Apply?
In some cases it may be sought for that one parent should receive sole custody of the child. In Germany it is generally seen that both parents have custody of the child but there are circumstances where the court will grant one parent sole custody if they deem that to be in the better interests of the child. The court will not automatically seek to sever the joint custody arrangement. Therefore, if one parent wishes to obtain sole custody they must show that the other party does not provide the right environment for their child to grow up in. When it comes to these decisions the court will bear in mind the following aspects:
- Who is in the better financial/personal situation to take care of the child,
- Who has taken care of the child in the past,
- Which parent will be more likely to grant the other access to the child,
- which parent will be able to provide more time in taking care of the child.
Generally in Germany, joint custody is provided for in court decisions. This is especially the case where the parents were married. When it comes to unmarried parents, the court will usually decide in favour of the mother of the child unless there has been a custody agreement between the two parties. In breaking a joint custody arrangement the court may do so if there is a risk that the child may suffer from physical or psychological abuse or neglect by remaining with one of the parents. Alternative solutions will be sought to resolve such issues but the court can decide on a full severance of custody as a last resort.
Question 5: What Decisions Must be Made Jointly in the Event of Joint Custody?
In the event of a joint custody arrangement, both parents must agree on major decisions which affect the child. Such major decisions include: the religious upbringing and education of the child, the choice of school, the type of school and the medication used by the child. In the event that the child requires urgent medical assistance, where delay would be detrimental to the welfare of the child, a parent may make a decision without first obtaining the consent of the other. These cases are decided based on what is considered to be in the child’s best interests. In other events, the everyday decisions of raising a child, the parent with custody does not need to consult the other parent.
As an illustration of what is included in everyday decisions and the borders to which this extends to we can use the example of a holiday. In general, a parent can take their child on holiday outside of the jurisdiction of Germany without first getting the permission of the other partner, but where there is a plausible risk that the child may be removed entirely from the jurisdiction the court can step in. In the event of one parent deciding to move to another country with the child the consent of the other parent is a requirement.
Question 6: What Decisions can be Made in the Event of Sole Custody?
In contrast to the requirements under joint custody, when a parent has been granted sole custody of the child they do not need to seek the permission of the other parent. Under sole custody it is believed that the primary caregiver is the one whose decisions are in the best interests of the child. The parent with sole custody is the one who makes the everyday and major decisions for the child. In these cases the primary caregiver can decide to move to another jurisdiction with the child without having to seek the permission of the other parent. However, it is worth noting that even in cases of sole custody the other parent will usually have a right to access the child. This allows the other parent to visit and keep in contact with the child. In such an instance the parent in question may visit the child but may not be able to make important decisions regarding the child. To try and deny the other parent the right of access can have serious consequences and therefore it is appropriate to seek legal counsel before making such a decision.
It is also worth noting that sole custody (or any form of custody) does not provide the parent with a carte blanche when it comes to their children. In some extreme cases it is within the rights of the state to remove a child from their parent(s). This step is allowed for under §1666 BGB and only used in extreme cases where other avenues have been exhausted. These cases are where the court has reason to believe that the welfare of the child is in danger through remaining with their parents. In effect these instances are where physical and psychological abuse or neglect is taking place involving the child.
Question 7: What Happens When One Parent Seeks to Live in Another Jurisdiction?
Where a parent seeks to move from Germany to another jurisdiction they need to consult with the other parent with joint custody. The court will look disapprovingly of cases where the parent in question did not consult the other regarding such a move. Where a parent does want to make such a move and cannot obtain the permission of the other parent the case can be brought before the courts. A court order must be granted before the move can take place. Such decisions are decided on based on the facts of the matter and in other words what is in the best interests of the child. The elements that the court takes into account are the following:
- 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.
The final point here refers to cases where the move in question has been triggered by a desire to limit the child’s access to the other parent or to prevent them exercising their custodial rights. Essentially the move should be made with the child’s interests kept in mind.
Question 8: Which Court has Jurisdiction in an International (EU) Dispute?
When it comes to cases involving EU citizens the general rule is that the country in which the child is habitually resident is the one with jurisdiction for the case. This means that if the primary residence of the child at the time of the case is Germany, then the case will be heard in Germany. In cases where the habitual residence is not known or cannot be proved to the court then the case will take place in the EU member state where the child is residing at the time of the case. Courts in EU member states generally apply the decisions made by those in other EU states. The only instances when this is not the case is where:
- It would be manifestly contrary to the public policy of the member state,
- The child in question was not given the chance to be heard (except in urgent cases),
- The judgment was provided in the absence of the person,
- The person in question was not served with the documents instituting the proceedings in sufficient time and in such a way as to enable them to arrange for their defence,
- A person claiming that the judgment infringes their parental responsibility was not given the opportunity to be heard.
In essence this means that if a person wishes to use the German courts to overrule a decision made in an EU court it won’t work in the absence of these conditions. This also applies with a decision made in Germany.
Question 9: What Happens in the Event of Disputes Involving Citizens of Non-EU Member States
The Hague Convention for the Protection of Children plays a role in cases involving many non-EU countries. All EU countries are signed up to this convention as well as other states including the USA, China, Russia, Canada and Saudi Arabia. This convention outlines similar laws as the European regulation on this issue. The country in which the child is habitually resident is the country whose courts should decide on the issue. The courts from the states signed up to the convention will generally recognise the judgments made by those in the other states unless there has been an issue that is manifest to the public policy of that country.