Child Access Cases in Germany

Unlike child custody, parental access rights specifically involve the right to spend time with the child, which is why these rights are often referred to as “visitation rights” in everyday language. These rights can only be revoked if contact with the respective parent poses a danger to the child’s well-being. Therefore, it is possible for a parent to hold sole custody while still granting the other parent visitation rights. In principle, the parent with sole custody is responsible for making significant life decisions for the child.

The parent with sole custody has the authority to set the conditions for the visiting parent’s time with the child, such as preventing activities that carry a high risk of injury. This arrangement necessitates open communication to reach a mutual agreement on how the visits should be structured. This cooperative approach also applies in cases of joint custody, as reaching a consensus regarding child access rights is always in the child’s best interest.

Regarding organising contact with the child, there is no legal stipulation regarding how much time a parent with access rights may spend with the child. Instead, these arrangements are typically made by mutual agreement between the parents, always prioritising the child’s welfare. The statutory presumption under § 1626 (3) sentence 1 German Civil Code (BGB) suggests that maintaining contact with both parents generally serves the child’s best interests. Similarly, § 1626 (3) sentence 2 BGB extends this presumption to include contact with other significant individuals in the child’s life, provided such contact benefits the child’s development.

Unlike the law relating to child custody rights, child access rights in Germany are not contingent on the parents being married or linked to maintenance payments. In cases where parents are permanently separated, there is no universal guideline for the extent and specifics of access rights. Instead, several factors typically play a crucial role in shaping these arrangements, including:

• The geographical distance between the parents’ residences.
• The child’s comfort level and relationship with both parents.
• The child’s schooling arrangements.
• The parents’ working hours and job commitments, such as frequent travel.

Addressing these questions can help parents work towards an access arrangement that best supports their child’s needs and well-being. At Schlun & Elseven Rechtsanwälte, we are dedicated to helping you navigate these considerations and establish a child access plan that aligns with your family’s unique circumstances.

In some situations, it becomes necessary to consider under what circumstances a parent’s access rights can be restricted or even withdrawn. According to § 1684 (4), sentence 1 BGB, the family court can limit or exclude the right of access if this is essential for the child’s well-being. Notably, any decision to significantly restrict or permanently exclude access rights must be based on a long-term risk to the child’s welfare. 

The family court may stipulate that contact can only occur in the presence of a third party, such as a youth welfare officer, to ensure the child’s safety and well-being during visits (§ 1684 (4) sentences 2 and 3 BGB). Cases involving neglect, abuse, or physical harm often prompt the youth welfare office to assume that the child’s welfare is at risk. Additional indicators might include substance abuse by the parent or a genuine risk of child abduction, which could necessitate safeguards such as surrendering the parent’s passport before visits. 

Previous issues with substance abuse do not automatically justify the withdrawal of access rights. However, conditions may be imposed, such as requiring the parent to seek professional assistance and provide proof of overcoming dependency.

If one parent obstructs the contact between the child and the other parent or unilaterally alters existing contact agreements, child access rights in Germany can be enforced through the family court. Before initiating legal proceedings, mediation facilitated by family counselling services, the youth welfare office, other mediation centres, or a lawyer can often help resolve conflicts amicably. The family court can issue an enforceable order to uphold an existing custody agreement or establish a new one if no prior arrangement exists. If there is no evidence suggesting that contact would harm the child’s well-being, the court will typically prohibit the denial of access and grant enforcement of access rights.

Given that the child’s welfare is the court’s primary concern, the child’s preferences must be considered, particularly as they mature. The court may also allow the child to express their views during proceedings to ensure their interests are respected.

In cases where child access is still denied despite a court order, the parent refusing contact can face fines and, in persistent non-compliance, even imprisonment. Violating court-mandated contact arrangements can also result in changes to custody arrangements.