Child Access Cases in Germany

After a divorce or separation, giving the child a sense of stability is essential. This can be achieved by having the child’s centre of life with one of the parents. However, this does not affect the other parent’s right of access.

In contrast to custody, the right of access only includes the parental right to spend time with the child. This is why the term “visitation rights” is used colloquially. This right can only be withdrawn if it endangers the child’s welfare. Despite the right of access, one parent may have sole custody. This parent is responsible for making important life decisions for the child.

Note that the sole custodian may also determine the framework conditions of the visits of the parent who only has rights of access. For example, they can prevent activities with a high risk of injury. It is advisable always to try to come to an amicable agreement with the other parent on how contact should be arranged. This also applies in the case of joint custody, as consensus is always in the child’s best interests.

There is no legally stipulated time that a parent should spend with their child. This is rather an aspect that the parents can clarify among themselves. In this context the focus must always be on the child’s best interests.

Accordingly, the right of access depends on the child’s best interests. According to the legal presumption of Section 1626 (3) sentence 1 of the German Civil Code (BGB), the child’s best interests generally include contact with both parents. The same applies to contact with other persons to whom the child has ties if their maintenance is conducive to its development (cf. Section 1626 (3) sentence 2 BGB).

It is also worth mentioning in this context that the right of contact does not depend on whether the parents are married. Moreover, this right is not linked to maintenance payments.

If the parents are permanently separated, there is no generally applicable solution for the scope and exact regulations of the right of access. However, the following factors are usually of particular importance:

• How far do you live from the other parent?
• Does the child feel comfortable in your neighbourhood?
• Where does your child go to school?
• What are your working hours?
• Does your work involve frequent travel?

For younger children, more frequent visits that are of shorter duration are usually advisable. It can be stressful for the child to be away from their primary caregiver for several days. Regular visits of a few hours support the establishment of an intimate and continuous relationship of trust with the other parent. However, longer stays with the other parent are reasonable for older children and teenagers. It should also be emphasised here that there are no general guidelines that can be applied to every situation. Rather, the initial relationship between the parties involved and the individual circumstances must be considered. In addition to regular visiting hours, special arrangements should be made for holidays. Here it is essential to find a harmonious balance. For example, one year the child can spend Christmas with their mother and the following year with their father. Again, try to find amicable solutions and show flexibility to act in your child’s best interest. If the child is old enough to express their wishes, it should be included in the arrangements.

In some cases, the question arises under which circumstances one parent’s right of access may be restricted or even withdrawn.

Since the right of access is linked to the prerequisite of the child’s best interests, this right can only be restricted or denied if the child is endangered by contact with the parent. According to Section 1684 (4) sentence 1 BGB, the family court may restrict or exclude the right of contact as necessary for the child’s welfare. It must be borne in mind that a decision that restricts or excludes the right of contact or its execution for a longer period or permanently can only be made if the child’s best interests are not only endangered in the short term by the contact. In particular, the family court may order that contact may only take place if a third party who is willing to cooperate is present (Section 1684 (4) sentences 2, 3 BGB).

A threat to the child’s best interests can be assumed, for example, in the case of neglect, sexual abuse and physical abuse. Further indications are alcohol or drug abuse by the parent concerned. Finally, the risk of abduction can also lead to the withdrawal of the right of access.

As mentioned, the right of access can be restricted in so that it may only be exercised in the presence of a third person. Such a person can be, for example, an employee of the youth welfare office. The primary concern here is to guarantee the child’s safety and well-being during the visit of the parent.

Former alcohol or drug abuse is not a reason for withdrawing the right of access. In this case, however, conditions can be imposed. For example, it can be demanded that professional help be sought and that it can be proven that there is no longer any dependency. If there is a risk of child abduction, it can be demanded that the passport is handed over before a visit.

If you refuse to allow the other parent access to the child without good reason, this can have serious legal consequences. However, even if you have concerns about contact, it is not advisable to take hasty steps. Talk to a lawyer to find out whether the other parent’s behaviour justifies stopping contact with the child. Our German family law team will support you in resolving existing conflicts out of court first. If this is not possible due to the weight of the other parent’s misconduct, we will also represent you in court. This is the case, for example, if the child’s welfare is endangered and a withdrawal of the right of access is unavoidable.

If one parent refuses to allow the child to have contact with the other parent or arbitrarily restricts the access agreement, the right of access can be taken to court.

Before a complaint is filed with the family court, an attempt can be made to find an amicable solution with the help of family counselling, the youth welfare office or other discussion centres, also with the help of a lawyer.

The court can issue an enforceable contact order for a contact agreement that has already been made but not complied with and establish a regulation if no consensual contact arrangement has yet been made. If it cannot be shown how contact with you could endanger the child’s best interests, the court will prohibit the refusal of contact and grant you your right of contact.

Since the child’s best interests are always paramount, the child’s wishes must also be considered in the contact arrangements as the child grows older. Thus, the child may and should also have its say in court. Under no circumstances should the child’s testimony be influenced by the parents – neither in one direction nor in the other. The child must always be protected and kept out of the parents’ conflicts as far as possible.

If the contact continues to be refused despite a court-ordered contact arrangement, a fine and, in the event of further non-compliance with the agreement, custody can be ordered against the refusing parent. Violation of the court contact arrangements can also lead to a change in custody.