German-British Family Law | Custody and Visitation Rights

German family law differentiates between child custody, the right to determine the place of residence and the right of access:

The child custody right is the essence of parental responsibility. It includes all important aspects of the child’s life such as for example deciding on their upbringing, their healthcare and their education.

Under German family law both parents (if they are married) are entitled to joint custody (“gemeinsames Sorgerecht”), according to Section 1626 of the German Civil Code (“BGB”).

If the parents are not married, the situation is a little different according to Section 1626 a para. 1 BGB: In this case, the parents must either both make declarations of custody, get married or joint parental custody must be assigned to them by the relevant family court. The family court grants joint custody to both parents if this arrangement is the most beneficial for the child’s welfare (“Kindeswohl”). In German family law the child’s welfare is the most important guideline in all matters related to custody and access rights.

If both parents have joint custody, the custody arrangement stays the same even in the case of separation. If important decisions for the child’s welfare must be made, they have to be reached by mutual agreement, Section 1687 (1) BGB. The child’s welfare is upheld when it is ensured that the child’s needs are in harmony with their current living circumstances.

In addition to joint custody, there is also sole custody (“alleiniges Sorgerecht”) under German family law. Sole custody is applicable when the child is to have their primary residence with only one of the two parents.

The following situations can generally lead to one parent having sole custody:

• One parent voluntarily surrenders their custody right
• The death of one parent
• If joint custody would harm the child’s welfare
• If the other parent is unknown or unfit to exercise their parental rights and duties

The right to determine the child’s place of residence (“Aufenthaltsbestimmungs-recht”) is a section of German custody law, Section 1631 Para. 1 BGB. The right to determine the place of residence, which is either granted to both parents or to the sole custodial parent includes (actively) determining the child’s habitual residence, domicile, and other temporary places of residence. The place of residence can also be negatively defined by imposing prohibitions of contact or enforcing curfews.

In contrast to custody, the right of access (“Umgangsrecht”) only refers to the parental right to spend time with the child. It is colloquially also referred to as “visitation right/Besuchsrecht”.

If both parents have joint custody of the child, they can jointly decide how visitation should be arranged. If one parent has sole custody, they can establish the conditions for the visitation of the non-custodial parent. For example, the custodial parent may prevent planned activities of the visiting parent if they pose a significant risk of harm for the child. If the visitation endangers the child’s welfare, visitation rights may be revoked as a last resort.

There is no legal regulation regarding how much time a parent with right of access can spend with the child. Instead, this solely depends on individual agreements between the parents. The visitation arrangements should again be made in such a way that the child’s welfare is the most important guideline. According to the legal presumption of Section 1626 Para. 3 BGB, it is generally in the child’s best interest to maintain contact with both parents. The same presumption applies to contact with other persons with whom the child has close bonds, such as other family members (for example the grandparents).

Unlike custody rights, the right of access is not dependent on the existence of a marriage between the parents. It is also not linked to alimony. If the parents are separated and live apart permanently, there is no general solution for the extent and the specific regulations of access rights.

However, the following factors are generally of particular importance:

• How far apart do the parents live?
• Does the child feel comfortable with both parents?
• Where does the child go to school?
• What are the parents’ working hours?
• Do their jobs require them to travel frequently?

Answering these questions can help the parents determine the most suitable visitation arrangement for their child.

As in German family law, British law also distinguishes between custody (also called “child arrangement”) and visitation rights (also called “contact”). Moreover, for both custody and visitation rights, the child’s welfare always serves as the most important guideline and is evaluated via the “best interests of the child” standard.

In the United Kingdom, there are the following forms of custody arrangements:

• Firstly, British family law distinguishes between legal and physical custody:
• Legal custody refers to the right to make the important decisions about the child’s life and upbringing such as which school to attend, healthcare, or religious affiliation. Typically, both the parents share legal custody (even if they don’t share physical custody).
• Physical custody refers to the right to make decisions about the habitual residence and domicile of the child and to arrange the day-to-day care of the child.
• Sole custody (also called “Full Custody”) is not the norm in the UK. It is usually only granted in certain situations, for example when the other parent is deemed unfit to adequately care for the child. The custodial parent then exercises both legal and physical custody alone and therefore has sole decision-making power. The non-custodial parent is to be informed about all important decisions regarding the child’s life and typically still has the visitation right.
• Most commonly, parents exercise joint custody in the UK, meaning they share the physical and legal custody. This does not necessarily have to occur in a 50:50 ratio but can be individually adapted to each family situation – always considering which solution is best for the child’s welfare.

Initially, it is up to the parents to clarify custody and visitation rights in case of separation or divorce. If the parents are not able to come up with arrangements of their own, the responsible family court is called upon to issue a child arrangement order. A child arrangement order determines where the child lives, when and how much time the child spends with each parent (or other important contact persons such as grandparents), and whether or which other forms of contact (for example, video calls) shall take place.

Child arrangement orders can be modified upon application to the responsible family court. This may become necessary if, for example, a parent is no longer able to care for the child. Child arrangement orders specifying which parent the child lives with remain legally binding until the child’s 18th birthday, whereas child arrangement orders specifying how much time the child spends with the other parent remain legally binding until the child’s 16th birthday. Once the child is 16 years old, they can decide for themselves how much contact they want to have with the parent they don’t live with.

Under British family law, the visitation right refers to the parental right to spend time with the child, be in communication with them, and be informed about the important decisions concerning the child.  Even in cases of sole custody, the other (non-custodial) parent typically has visitation rights with the child, unless this was detrimental to the child’s welfare. The extent of visitation is also to be determined individually and includes factors such as the child’s needs, the parents’ working hours and availability, as well as any school or leisure activities of the child.

Grandparents do not have automatic visitation rights with the child under British family law but can apply for this at the responsible family court.

Since Brexit, the recognition and enforcement of decisions concerning children’s matters are no longer regulated by the simplified and standardized procedure according to the Brussels IIa Regulation, but rather by the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children (HCCH 1996 Child Protection Convention).

Both Germany and the UK are Member States. The HCCH 1996 Child Protection Convention is a multilateral treaty covering a broad range of civil measures to protect children in cross-border situations and regulates – among other things – the obligation to recognize and enforce judicial decisions and court orders made in one Member State (e.g. Germany) in another Member State (e.g. the UK). This also applies vice versa, meaning that UK custody and visitation agreeements are also recognised and enforced in Germany.

To enforce a custody or visitation agreement across borders in another HCCH Member State, the agreement or decision needs to be granted an enforcement declaration in the state where the child is currently located. For example, if the parents separate and one parent moves the child from Germany (back) to the UK (with the consent of the other parent), any existing German decision will need an enforcement declaration in the UK. The competent British family court also reviews whether the German family court that ruled on the custody arrangement was competent to do so under the HCCH. The German family court was competent if at the time of the ruling the child habitual residence was Germany.

In addition to the HCCH 1996 Child Protection Convention, both Germany and the UK are also Member States of the Convention on the Civil Aspects of International Child Abduction (HCCH 1980 Child Abduction Convention). This means that if one parent moves the child from Germany to the UK or vice versa (without the consent of the other parent), the other parent can file a request for the return of the child (“Antrag auf Kindesrückführung”).

The competent authority for handling requests for the return of the child is the Federal Office of Justice (“Bundesamt für Justiz”). In cases where requests are made from Germany, the Federal Office of Justice acts as the central authority (“Zentrale Behörde”), forwarding the requests to the respective British authorities and assisting the parent throughout the entire process.

In the case of incoming requests from other countries (e.g., for a child abduction to Germany), the Federal Office of Justice is also considered the German central authority under the HCCH 1980 Child Abduction Convention  and is by law authorised to act on behalf of the applicant, either directly or through sub-delegation by representatives, both in judicial and extrajudicial proceedings.