German-Canadian Family Law | Custody and Right of Access

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

Child custody is the essence of parental responsibility. It includes all essential aspects of the child’s life, such as deciding on their upbringing, healthcare, and 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”).

The situation is a little different if the parents are unmarried, according to Section 1626 a para. 1 BGB: In this case, the parents must either both make declarations of custody, get married, or have joint parental custody 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 (“Aufenthaltsbestimmungsrecht”) is a section of German custody law, Section 1631 Para. 1 BGB. This right, 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 the visiting parent’s planned activities if they pose a significant risk of harm to 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 the 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, maintaining contact with both parents is generally in the child’s best interest. 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 and is also not linked to alimony. If the parents are separated and live apart permanently, there is no general solution for the extent and 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.

Canadian family law also differentiates between custody and the right of access. Parallel to German family law, the child’s welfare is the most important guideline in all family law matters.

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

• Sole Custody: One parent has sole custody and, therefore, the primary responsibility for making decisions about the child’s upbringing. Sole custody is often awarded when one parent is unfit or unable to provide the necessary care for the child. The non-custodial parent typically has a right of access.

Under Canadian family law, “custody” comprises legal custody and physical custody:

• • Legal Custody refers to the right to make important decisions about the child’s life and upbringing. Typically, both 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 child’s day-to-day care.
• Joint Custody: In a Joint Custody Agreement, both parents have legal custody and decision-making authority. The child may primarily live with one parent, but both parents have an equal say in important decisions concerning the child. Joint custody arrangements are especially beneficial for the child since they allow them to maintain relationships with both parents.
• Split Custody: In split custody arrangements, the children are split between the two parents (so that siblings are separated). These arrangements are rare since they can place an emotional burden on both the parents and the children.

Under Canadian family law, the right of access refers to the parental right to spend time with the child, communicate with them, and inform them about important decisions concerning the child.

When parents separate, it is primarily their responsibility to reach an agreement regarding custody and access. If the parents are unable to reach an agreement on their own, an agreement will be determined by a competent family court or a mediator.

Both Germany and Canada 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. It 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., Canada).

This also applies vice versa, meaning Canadian custody and access arrangements are also recognised and enforced in Germany.

To enforce a custody or access 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 Canada (with the consent of the other parent), any existing German decision will need an enforcement declaration in Canada. The competent Canadian 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 the child’s habitual residence was in Germany at the time of the ruling.

In addition to the HCCH 1996 Child Protection Convention, both Germany and Canada 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 Canada or vice versa (without the other parent’s consent), the other parent can file a request for the child’s return (“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 Canadian authorities and assisting the parent throughout the entire process. 

In Canada, there is no concentration of jurisdiction (“Zuständigkeitskonzentration”) for matters of international child abduction (unlike in Germany, where the International Family Law Procedure Act – “IFLPA” assigns such matters to one identified local Family Court per District). Therefore, for complex cases such as international child abduction under the HCCH, it is advisable to approach a federal court rather than a local court.  

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.