The Basics of Child Visitation Rights in Germany
Following a divorce or separation, the children of the relationship may live with one of the parents to provide them with a stable level of stability. However, the other parent also has the right to be given access to their child. As can be seen on this page, that right of access is not unconditional and is based on the child’s best interests. This right to access is protected by German law under § 1626 BGB, and the best interest of the child is referred to as the following:
The best interests of the child as a general rule include contact with both parents. The same applies to contact with other persons to whom the child has ties if maintaining these ties is beneficial for its development.
It should be clear that the right to access and visitation is not limited based on marriage or lack of marriage on the part of the parents. Allowing parents to have the right of access to their child means that they can be connected. Under German law, they are entitled and obliged to contact their children. This right to access is not based on whether the parent in question is paying maintenance or how much maintenance they are paying.
Access and Custody
Access and custody are not equivalent. One of the parents may have sole custody over the child and make important decisions in the child’s life. Usually, German courts award joint custody in these cases, but sole custody may be awarded if there is a challenge for sole custody. Having sole custody does not mean the other parent cannot have child visitation rights. Withdrawal of child visitation rights in Germany only occurs where maintaining the child visitation rights endangers the child’s best interests.
If a party only has access rights and not custody rights, they cannot make major decisions in the child’s life. They will have to consult with the sole custodian should they wish to see these decisions made. This right to make decisions even extends to moving the child to another jurisdiction. However, it should be noted that such a move does not extinguish the other parent’s child visitation rights. They still have access to the child even when they are abroad.
The parent with sole custody can set the rules concerning what can happen during the visits. They can rule out potentially dangerous activities, but once again, working amicably is recommended. Having an agreement about what should occur during visits is generally recommendable, regardless of whether there is joint custody or sole custody at play. Open, honest and clear dialogue can ensure that the child’s best interests are at the heart of the matter.
Is there a Legal Guideline for Child Visitation in Germany?
There is no legally specified amount of time a parent needs to spend with their child. This is an aspect which should be resolved between the parents. Once again, the child’s best interests are at what stake here, and this should not be used to put the child in the middle of the argument between parents. We would advise parents to think about the best interests of the child when creating the plan.
It may be more advisable for young infants to have more frequent visits but of shorter duration. A whole weekend may be too long for them to be away from their primary caregiver, but shorter visits for several hours frequently will provide them with a valuable connection. For older children and teenagers, weekends with one parent or alternating weeks with parents me the course. Factors such as the following should be taken into account:
- when the parent works (is it shift-work? Is it part-time?),
- does their work involve frequent travel?
- How far away do the parents live from each other,
- where they go to school,
- and how comfortable they are in their surroundings?
When it comes to big holidays like Christmas, semester holidays, Easter etc., it should be considered where the child spent the last holiday. Maybe an arrangement can be reached that the child spends one Christmas with one parent and the next Christmas with the other parent. There may be no legal guideline, but it is advisable to reach an agreement together in an amicable fashion. Working collaboratively and with the child’s best interests at the heart of the discussion can lead to the best solutions.
Can the Courts decide on Child Access?
The court can make decisions on this front. It is preferable to resolve this between parents, but if the courts feel that a certain access model is in the child’s best interests, they can enforce that model. This is why it is not advisable to withhold access or put the child in the middle of the conflict between parents. Therefore, where possible, construct an agreement around child access and work openly and honestly . Where parents live far away from each other make time for personal contact. There is no excuse for denying a parent access to their child by the internet or phone or other means of communication in our communication age. Getting courts involved can make the situation more complicated, add to the children’s stress, and end up costing time and money. Amicable resolutions are preferable to adversarial resolutions.
Withholding Child Visitation Rights
Child visitation cases are best resolved by the parents reaching an agreement on how the visitation occurs. This should be sensibly structured and with the child’s best interest playing the key role. An arrangement should be drawn up in a sensible manner, and dialogue should be open to contact weekends or days.
Reneging on an agreement can be damaging. As shown below, there are valid grounds for access to a child to be removed, but doing so unilaterally without justification can lead to problems. If you have concerns regarding your child’s best interests, do not act rashly, contact our family law team, and they can come up with a solution with you. Acting rashly when it comes to the withholding of child visitation rights can be damaging not only on a legal basis but also in reducing trust between children and parents.
Withholding visitation rights and unilaterally preventing the other parent from exercising their access rights can lead to the matter being brought before the court or in front of Youth Welfare Office. If possible, try and resolve the matter amicably. Failure to resolve such visitation allowances can lead to fines being imposed. It is better to resolve such an issue outside of court. Look for professionals to mediate the matter, to avoid legal conflicts.
However, as can be seen below, if you are worried about the child’s welfare, there are limitations in place regarding the right to access. Make sure to contact a family law professional before making any drastic moves. If the child’s welfare is in danger, the right of access can be limited or even withdrawn.
Limitations in Child Visitation Rights in Germany
Child visitation rights in Germany are not guaranteed. Parents do not automatically receive such child visitation rights. The child’s rights are the most important aspect of this and are considered central in such cases. Child visitation rights can be denied in cases where it is felt that the child’s welfare is considered to be endangered. The court is entitled to reduce or withdraw the right of visitation under § 1684 BGB. In particular, §1684 (4) should be borne in mind here, which states:
The family court may restrict or exclude the right of contact… on the right of contact, to the extent that this is necessary for the best interests of the child. A decision that restricts the right of contact or its enforcement for a long period or permanently may only be made if otherwise the best interests of the child would be endangered. The family court may in particular order that contact may take place only if a third party who is prepared to cooperate is present. The third-party may also be an agency of the youth welfare service or an association…
Such danger can take the form of neglect, sexual abuse and physical abuse. Here are examples of circumstances in which the child visitation rights may be denied:
- physical abuse of the child,
- sexual abuse of the child,
- neglect or alienation,
- alcohol abuse/drug abuse,
- risk of abduction / international child abduction
Child visitation rights in Germany can also be restricted to such factors. It may be the case that visits are only allowed with another accompanying person to ensure that issues do not arise. Such accompanying persons may be those from a youth welfare service or another third party. The primary focus here is that the child is safe when visiting the parent in question.
A history of alcohol or drug abuse is not a reason in itself to withhold child visitation rights, but it may lead to restrictions. Such restrictions may involve a need to show that they are getting professional help, that they will avoid alcohol while the child is staying with them or even handing over a passport to show that they cannot abduct the child while the child is staying with them. Contact us today if you would like to find out more about the conditions which can be put in place for child visitation cases.