Joint Child Custody in Germany
In principle, both parents are entitled to joint custody in the case of married couples, § 1626 BGB. The situation is somewhat different for unmarried parents: Here the parents must either make declarations of custody, marry or joint parental custody must be transferred by the family court, § 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 best interests of the child, the mother often has sole custody, § 1626 a para.3 BGB. Even if the two parents live separately, joint custody remains for the time being. If important decisions have to be made for the child in this context, this must always be done by mutual agreement, § 1687 Para. 1 BGB.
Sole Child Custody in Germany?
If the marriage or partnership breaks down, parents are usually faced with how child custody is to be exercised in the future. Especially if the child is to have its centre of life with only one parent in the future, custody disputes can arise, which are often only decided after legal disputes. The Youth Welfare Office (Jugendamt) is regularly involved, but its recommendations are not binding for the court. According to the will of the legislator, 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
- Harmfulness of joint custody for the child’s welfare
- The other parent is unknown or incapable of exercising parental care and duties arising therefrom.
Voluntary Relinquishment of Child Custody
The simplest case without dispute is when one parent voluntarily relinquishes child custody. There can be many reasons for this, for example, that one parent feels this is best for their child or is overwhelmed with the new situation. One parent can then apply to the family court to transfer sole custody, to which the other parent agrees, § 1671(1) BGB.
Withdrawal of Child Custody from One Parent
The situation is different if neither parent wishes to relinquish custody or both parents continue to insist on exercising custody. Here, too, one parent will apply to the family court for the transfer of sole custody. Unlike in the case of consent by the other parent, the court decides according to the child’s best interests, § 1671 para. 1 BGB. As a rule, sole parental custody is only granted to one parent if the exercise of 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 examines whether the transfer to the petitioner, in particular, is in the child’s best interests.
According to established case law and the decision of the Federal Supreme Court of 15 June 2016 (XII ZB 419/15), weighty aspects of the best interests of the child that must be considered are not cumulative. Still, they can be more significant depending on the individual case:
- The suitability of the parents to raise the child,
- The child’s attachment,
- The principles of support and continuity, and
- Respect for the will of the child
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 there is a sustained and profound conflict between the parents. Such a disruption at the level of communication between the parents must give rise to fears that the parents will not reach a joint decision. This 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 in principle willing to cooperate, individual differences of opinion are insufficient. (cf. BGH v. 15.6.2016 XII ZB 419/15).
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 viable social relationship between the parents is necessary for the maintenance of joint child custody. For the decision to terminate joint parental custody, the individual case 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 withdrawn, this may affect the care of the property, the right to determine the place of residence and the care of persons. However, it is important to know that there must be serious reasons for a parent to be deprived of custody or parts of custody.
Access Rights of the Other Parent with Sole Child Custody
In most cases, the child lives most of the time with one of the two parents. At the same time, this does not mean that the other parent cannot see the child. Rather, both the child and the parent concerned have a statutory right of access, § 1684 Para. 1 BGB, which also means a duty of contact for the parent. The purpose of the right of access is not to 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 of the child (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 completely denied for serious reasons. According to § 1684 (3) BGB, the right of access 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 if this is necessary for the child’s welfare. Thus, in the context of the right of access, it makes sense to seek legal help to make the right 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, §§ 78 para. 1 ZPO, 114 FamFG.
Special Case in German Child Custody Law: Right to Determine Residence
The right to determine the place of residence is a sub-area of the right of custody and is mentioned in the enumeration of § 1631 par. 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. 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 according to § 1671 (1) BGB German Civil Code.
The parent who has the right of residence determines the child’s permanent residence place and 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 other parent’s consent or based on a court decision has the authority to make sole decisions in matters of everyday life. The distinction between everyday matters 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 child’s best interests. (cf. Higher Regional Court of Braunschweig, order of 30.07.2020 – 2 UF 88/20). According to the provision, decisions in matters of daily life are generally those that occur frequently and do not have any effects on the child’s development that are difficult to change If, on the other hand, it is a matter of medical treatment on a larger scale, a change of school or similar significant decisions, these must be made jointly by both parents.
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.