German-Australian Family Law | Parental Responsibility and Visitation Rights

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

The 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.

Like German family law, Australian family law distinguishes between custody/parental responsibility (“Sorgerecht”) and visitation rights (“Umgangsrecht”). In both parental responsibility and visitation matters, the child’s best interest standard serves as the paramount guideline. In accordance with the child’s best interests, parents must ensure that their child receives the best possible care, that their individual (emotional) needs are met to the greatest extent possible, and ideally that they maintain a close, functioning relationship with both parents.

Custody (also called “parental responsibility” in Australian family law) is divided into two different components according to the Family Law Act of 1975:

• Parental responsibility: Parental responsibility encompasses the parents’ right to make important decisions for the child, such as questions regarding their upbringing, education, healthcare, or religious affiliation.
• The child’s living arrangements: The “living arrangements” include the parents’ right to decide the child’s place of (habitual) residence, as well as to determine how, for example, school holidays or public holidays are to be divided between the parents.

There are different forms of custody arrangements under Australian family law:

• Sole Parental Responsibility: In cases of sole custody, one parent exercises custody rights alone (both “parental responsibility” and “living arrangements”) and thus has sole decision-making powers over all questions concerning the child’s upbringing and place of residence. However, sole custody is the exception In Australia and is only granted when one parent is not (or no longer) able to adequately take care of the child, for example in cases of illness or domestic violence.
• Shared Parental Responsibility: Under Australian family law, shared parental responsibility is the norm. With shared custody, both parents share custody rights and thus decision-making powers over any important decisions for the child. Shared custody does not necessarily mean that the child must divide their time 50:50 between the parents – rather, it is up to the parents to find an individual custody arrangement that is best adapted to their respective situation and most beneficial to the child’s welfare.
• Split Custody: Split custody is also an exception in Australia: Here, siblings are divided between the two parents, so that, for example, Child A lives with the mother and Child B with the father. This form of custody is only used when it is beneficial to the child’s welfare, for example, because one parent can better address the needs of one child than those of the other.

In comparison to custody rights, visitation rights determine who is allowed to spend how much time with the child. According to Australian family law, visitation can be granted not only to parents but also to other persons close to the child, such as grandparents or godparents. Even if one parent has sole parental responsibility, the other parent still has the right to visitation with their child.

When parents separate, it is primarily up to them to find the best visitation arrangement (“parenting plan”). Only if the parents are unable to reach an agreement on their own, a parenting order will be determined by the competent family court. Visitation arrangements can always be adjusted if necessary to maintain or best promote the child’s welfare.

Both Germany and Australia are Member States of 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). 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 recognise and enforce judicial decisions and court orders made in one Member State (e.g. Germany) in another Member State (e.g. Australia). This also applies vice versa, meaning that Australian child custody arrangements are also recognised and enforced in Germany.

To enforce a custody 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 to Australia (with the consent of the other parent), any existing German decision will need an enforcement declaration in Australia. The competent Australian 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’s habitual residence was Germany.

In addition to the HCCH 1996 Child Protection Convention, both Germany and Australia 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 form Germany to Australia 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 Australian authorities and assisting the parent throughout the entire process.