Custody and residence determination rights form an area of German family law that frequently involves serious decisions affecting family life. These matters become especially complex, both legally and personally, when parents’ interests diverge.
Under German law, the child’s welfare is the guiding principle for all decisions on custody and residence. Determining which factors matter most for a child’s welfare, and how to weigh them against one another, requires not only a firm grasp of the law but also sensitivity to the interpersonal dynamics involved.
In practice, parents facing this situation generally need clarity on their own legal position before deciding on the next steps. At Schlun & Elseven, our family law practice group supports clients across Germany, including in cases with an international dimension, on questions of custody, residence determination, and access rights, from an initial assessment of the prospects of success through to representation before the family court.
For international families dealing with custody matters in Germany, additional complexities often arise where the other parent is based abroad. We regularly advise on cross-border custody and access arrangements between Germany and the United Kingdom, the United States, and Canada, each raising its own questions of coordination with foreign family courts, compliance with international conventions on child abduction such as the Hague Convention on the Civil Aspects of International Child Abduction, and the practical realities of determining a child’s residence across two different legal systems.
Joint Custody in Germany
Both parents are generally entitled to joint custody where they are married, according to Section 1626 of the German Civil Code (Bürgerliches Gesetzbuch, BGB). Where the parents are not married, they hold joint parental custody under Section 1626a(1) BGB if they either file a joint custody declaration, marry one another, or have joint parental custody transferred to them by the competent family court. The family court transfers custody jointly to both parents where doing so serves the child’s welfare.
Where both parents already hold joint custody, a separation does not by itself change this. Under these circumstances, important decisions concerning the child’s welfare must always be made by mutual agreement, Section 1687(1) BGB. Child welfare turns on whether the child’s needs are in keeping with their living circumstances, and the conduct of both parents and other people close to the child is also taken into account. If the parents are not married and none of the situations above establishing joint custody apply, the mother holds custody alone, Section 1626a(3) BGB.
Sole Custody in Germany
Where a child is to have their primary residence with only one parent going forward, this frequently leads to disputes between the parents that end up before the family court. The youth welfare office (Jugendamt) is typically involved in these cases, though its recommendations are not binding on the court. Under German law, joint parental custody is generally intended to continue even after a divorce or separation.
A parent may generally hold sole custody in the following situations:
- Voluntary relinquishment of custody by the other parent
- Death of the other parent
- Joint custody being harmful to the child’s welfare
- The other parent being unknown, or incapable of exercising parental custody and the associated duties
For a voluntary relinquishment, a parent can apply to the family court for sole custody to be transferred to them, with the other parent’s consent, Section 1671(1) sentence 2 no. 1 BGB.
If you are facing a dispute over sole custody, having your position reviewed early can shape how the case develops. Our Family Law practice group can assess your prospects before you file, or respond to, an application.
What if the other parent will not agree to give up custody voluntarily?
Where the other parent does not consent, voluntary relinquishment is not an option, and the matter proceeds as a contested withdrawal of joint custody instead.
Withdrawal of Joint Custody in Germany
The situation is different where both parents continue to insist on exercising custody. Here as well, one parent will apply to the family court for sole custody, Section 1671(1) BGB. The court examines whether joint custody can no longer be maintained in the child’s interest. Where it reaches this conclusion, it decides the matter based on the following criteria:
- The applicant’s parenting ability – in particular, which parent is better placed to offer the child suitable opportunities for development and support the growth of their personality (the “support principle,” or Förderungsprinzip),
- The child’s attachments and wishes,
- The aim of enabling the most consistent and stable relationship possible with parents and siblings (the “continuity principle,” or Kontinuitätsprinzip).
While custody disputes tend to follow familiar patterns, every family situation is treated individually and assessed according to what best serves the child’s welfare.
When Can Custody Be Withdrawn Due to Risk to a Child’s Welfare?
The withdrawal of custody due to a risk to the child’s welfare under Section 1666 BGB is distinct from an application between the parents. Here, the family court can act on its own initiative, without either parent applying, where the child’s physical, mental, or emotional welfare is at risk and the parents are unwilling or unable to avert that risk. The family court may withdraw custody partially or in full – a partial withdrawal might affect, for example, management of the child’s assets, the right to determine the child’s residence, or custody of the person.
Who Decides Where a Child Lives in Germany?
The right to determine a child’s place of residence is part of custody of the person, Section 1631(1) BGB. It covers the authority of the parents, or of the parent with sole custody, to determine the child’s habitual residence, domicile, and any other place the child stays temporarily. This authority also extends to negative determinations, such as prohibiting contact with specific people or restricting when the child may go out.
Unless a court has decided otherwise, both parents generally hold the right to determine the child’s residence jointly. However, a parent may apply for sole authority over this decision under Section 1671(1) BGB.
Under Section 1687(1) sentence 2 BGB, the parent with whom the child habitually resides – whether by the other parent’s consent or by court order – has the authority to decide day-to-day matters alone. This distinction between routine, day-to-day matters and matters of substantial significance is defined by Section 1687(1) sentence 3 BGB, and in practice turns on what is compatible with the child’s welfare (OLG Braunschweig, order of July 30, 2020 – 2 UF 88/20). Under this provision, day-to-day matters are generally those that occur frequently and have no lasting effect on the child’s development. Significant medical treatment, a change of school, and comparable major decisions, by contrast, must be made jointly by both parents.
Access Rights of the Other Parent Where Sole Custody Is Granted
In most cases, a child lives primarily with one parent. Both the child and the other parent then have a statutory right of access, Section 1684(1) BGB, which also amounts to a duty of contact for that parent. The right of access does not exist to guarantee both parents an equal share in the child’s life; rather, it serves the child’s welfare and healthy development (OLG Köln, order of March 12, 2012 – 4 UF 235/11).
The family court decides exactly how this right of access is structured, and when it may be denied entirely for serious reasons. Under Section 1684(3) sentence 1 BGB, the court can decide on the scope of the right of access and regulate its exercise in more detail, including as against third parties. The family court may restrict or exclude the right of access, or enforcement of earlier decisions on access, under Section 1684(4) BGB, to the extent this is necessary for the child’s welfare. It is therefore worthwhile seeking legal advice in relation to access as well, to submit the appropriate applications and safeguard the child’s welfare. Where access is to be negotiated as part of divorce proceedings, legal representation is generally required, Section 114(1) of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (FamFG).
Support from Schlun & Elseven in Custody Proceedings
Our family law practice group first reviews the specific circumstances of the case – such as the existing custody status, any planned relocation, or conflicts relating to access rights – and develops a strategy for the next steps on this basis. Where a case has an international dimension, such as an intended move abroad or a cross-border custody dispute, we draw on our firm’s international experience, including English-language advice and expertise in international family law. Contact our Family Law team for a confidential initial assessment of your custody or access situation. We will review the facts, explain the options under German law, and set out a clear next step – including for cases with an international dimension.
An Overview: Frequently Asked Questions about Child Custody in Germany
All three rights exist between parent and child, but are legally distinct from one another and can be pursued independently. Custody covers the full scope of parental responsibility, including upbringing, health care, education, and management of the child’s assets. The right to determine residence is part of custody of the person, and governs who decides the child’s habitual residence and domicile. The right of access, in turn, is a separate right of contact that generally also belongs to the parent with whom the child does not live, independent of custody or residence determination rights. All three are separate from child maintenance, which is owed regardless of who holds custody or where the child lives.
The child’s interests and welfare are decisive. The court looks at the child’s relationship with each parent and assesses parenting ability, stability, and the home environment. Joint custody is generally the starting assumption; sole custody is granted only as an exception in particular cases, and is often supported by a psychological expert report. In this situation, it is worth consulting an experienced family lawyer to discuss the right approach and the options available.
As in any custody case, the child’s welfare is decisive. Where both parents hold custody, the consent of both parents is generally required. The parent proposing the move must give legitimate reasons, such as employment opportunities or family support, which the court will evaluate. The court also examines how the move might affect the child’s relationships and quality of life. Where an international move takes place without the other parent’s consent, this may amount to the wrongful removal of the child under the Hague Convention on the Civil Aspects of International Child Abduction. In such cases, legal steps can be taken to secure the child’s return to Germany.
The right of access also belongs to the parent without custody, and can only be restricted or denied where access would endanger the child’s welfare – this remains an absolute exception. Where a parent intentionally violates a court-ordered access arrangement, they risk regulatory consequences under Section 89 FamFG, including a fine or, failing payment, coercive detention. In particularly serious cases, criminal liability for the removal of a minor under Section 235 StGB may also apply. Anyone facing such a situation should have their available options reviewed by a lawyer.
In the case of acute danger, contact the police immediately and apply for temporary protective orders. You should also inform the youth welfare office (Jugendamt) and seek legal support as a next step. At the same time, legal representation can apply to the family court for interim measures to protect the child, such as a temporary transfer of the right to determine the child’s residence.
Costs depend on the value of the matter in dispute, and on whether an out-of-court settlement or court proceedings become necessary. Once we receive an inquiry, we carry out an initial assessment and provide a concrete cost estimate before any mandate is confirmed.
Practice Group: German Family Law
Practice Group: German Family Law
Contact Schlun & Elseven Rechtsanwälte
Please use our online form to outline your request to us. After receiving your request, we will make a brief initial assessment based on the facts described and provide you with a cost offer. You can then decide whether you would like to engage our services.
