Every separation of a couple with a child raises the question of contact arrangements. This is based on the principle that each parent has the right to contact with their child. The child also has a fundamental right to contact with its parents and other important attachment figures. In addition, the child’s best interests must always be considered when making contact arrangements. The regulation of contact rights and custody and residence rights often leads to conflicts that pose a challenge for all parties involved.
To provide our clients with the support they need in such a situation, the German law firm Schlun & Elseven Rechtsanwälte offers skilled and committed legal assistance. Our family lawyers have in-depth expertise and the necessary empathy to achieve a sustainable solution and make this emotionally demanding situation as pleasant as possible. We will stand up for you so that your rights and interests as a legal guardian are always protected.
Right of Access – What is that?
Access rights in Germany regulate parental/guardian contact with a child. Who has the right to spend time with the child, and to what extent? Colloquially, this can be referred to as “visiting rights”. Access rights must be distinguished from custody rights and the right to determine residence. The yardstick for access rights is always the best interests of the child. There are no legal requirements for a more detailed arrangement, as family constellations are individual, and the contact arrangements should suit your family. According to the legal presumption, the child’s best interests include contact with both parents and other persons with whom the child has close ties, see Section 1626 para. 3 of the German Civil Law (BGB).
It is advisable always to reach an amicable agreement with the other parent on how contact should be organised. This also applies in the case of joint custody, as consensus is always in the child’s best interests.
What is a Contact Arrangement?
In principle, the parents can agree on who can spend time with the child, when, and which other relatives can participate in the child’s life. If an agreement cannot be reached, finding a solution in another way will be necessary. This is where court-ordered contact arrangements come in. This is a binding arrangement for all parties involved, stipulating the time and often also the place or activity restrictions for which parent or carer may do what with the child and when.
To determine the best possible arrangement, the family court can consult the youth welfare office before deciding and drawing up a family psychology report. Children from the age of three are asked about their wishes to ensure that they feel comfortable with the contact arrangements – the key phrase here is “child welfare.”
What can be Included in a Contact Arrangement?
A contact arrangement can be as individual as your family is. A timeframe is set for the parent with whom the child does not live. However, it can also be agreed that the child alternates between its parents weekly or similarly. The timeframe is, therefore, very flexible. Time arrangements can also be made for other family members, such as grandparents if it is feared that they will not have contact with the grandchild without such an arrangement.
It can also be agreed in the contact arrangement whether the child will be picked up or dropped off, whether the child will stay overnight with the other parent, and where contact with the other parent should take place.
Holidays and public holidays can also be regulated in the agreement. In addition to personal contact, contact by letter or electronic message and by telephone is also part of the right of access. Times can also be arranged for telephone calls, for example if the parents live in different places.
An amicable solution is usually the best solution for family stability. In any case – whether by mutual agreement or by court order – the child’s best interests come first. Accordingly, the child’s wishes are also considered regarding contact with their parents and other carers. The following applies: the older the child, the greater the weight of the child’s wishes so that the child could decide against contact with one of its parents.
Finally, it can be agreed that some arrangements can be flexibly adapted to the parents’ circumstances to a certain extent. For example, agreements can be made in advance if one parent wishes to move abroad.
Consequences of Violating the Contact Arrangement
If one parent does not adhere to the (court) contact agreement, the other parent initially feels helpless. For example, the child is repeatedly brought back too late, agreements regarding activities and locations are not adhered to, etc. What can you do about it?
Firstly, you can try to talk to them. However, if it gets to the point where agreements are repeatedly not honoured, discussions are usually no longer effective.
The court can issue a warning to emphasise the importance of complying with the court order. Another option is to adapt the contact arrangements. It could be that the previous arrangement is no longer suitable, and the parent finds it challenging to comply with the existing arrangement due to changed circumstances. The agreement could also be amended so that contact is restricted in terms of location or time.
A fine may also be imposed as a next step after a warning. In exceptional cases, a change of custody could be imposed in favour of the parent in breach of the agreement.
However, the best interests of the child, and therefore also the child’s wishes, must be considered. If the child speaks out against contact with one parent, the parent with whom the child remains cannot be penalised for violating the contact agreement. In such cases, the problem areas of the right of access become clear. Forcibly enforcing contact rights against the will of one of the parties involved is not in the child’s best interests. A workable compromise must always be found – measured against the child’s best interests.
Practice Group: German Family Law
Practice Group:
German Family Law
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