When couples with children separate, the separation usually leads to questions about the right of access. In principle, each parent has the right to spend time with their child, just as the child has a right to spend time with both parents and other important caregivers (e.g. the Godparents). In all family law matters involving children, the child’s welfare is the primary guiding principle. This is especially true for matters related to the right of access and custody and residence determination rights.
The Right of Child Access in Germany
The right of access (“Umgangsrecht”, commonly also referred to as “visitation right”/”Besuchsrecht”) needs to be distinguished from custody rights (“Sorgerecht”). Unlike custody, visitation rights only cover the right to spend time with the child. There is no legal definition on the scope or the arrangement of said time. Instead, the visitation right depends on individual agreements that suit both the parents and the child. The guiding principle for establishing visitation arrangements should again always be the welfare of the child. According to the legal presumption of § 1626 para. 3 German Civil Code (BGB), the child’s welfare includes contact with both parents and also with other persons with whom the child has close bonds.
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.
What is a Contact Arrangement?
In principle, parents can agree individually on who can spend time with the child, when, and how much time, as well as which other relatives or caregivers should be involved in the child’s life. If the parents cannot agree on a right of access arrangement, finding a solution through other means becomes necessary. This is where the court-ordered right of access arrangement comes into play. The court’s arrangement is binding for all parties involved. It typically specifies the amount of time, and often the location, each parent or other caregiver can spend with the child.
To determine the best possible arrangement, the family court may consult with the youth welfare office and request a (family-)psychological report. During that time, the family court often appoints a supervisor to oversee the proceedings. When setting the right of access arrangement, the family court considers the individual family situation and living conditions.
The following points may be included in a court-ordered right-of-access arrangement:
- How frequently the child will switch between both parents (e.g., whether the weekly, weekend, or nest model is chosen).
- How will the right of access be arranged during holidays and special occasions (such as public holidays).
- The schedule will be flexible depending on the parents’ professions. The arrangement may specify how much flexibility is allowed regarding the visitation schedule.
It should be noted that the older the child is, the more weight the child’s wishes carry in shaping the right of access arrangement.
Violation of the Right of Access-Arrangement: What Are the Consequences?
If a parent does not adhere to the court-ordered right of access arrangement, it often leads to organisational difficulties for the other parent. If a discussion with the offending parent is not possible or does not lead to a solution, the family court may issue a warning or modify or limit the court-ordered arrangement. The family court may impose a fine if the behaviour does not improve after the warning. If this still does not result in a change, the court may ultimately order a change in custody, thereby removing custody from the offending parent. In the case of custody removal, the now sole custodial parent is responsible for arranging visitation for the child.
However, even in violations of the right of access arrangement, the child’s welfare—and, of course, the child’s wishes—must be considered. If the child rejects visitation with a parent, the parent with whom the child prefers to remain cannot be punished for violating the arrangement (since the parent is ultimately acting in the child’s best interest, even if this contradicts the established arrangement). This situation highlights the weaknesses of the right of access: Enforcing the arrangement may not automatically promote the child’s best interests. It is, therefore, essential to find a viable compromise for all parties, always considering the child’s welfare.
Practice Group: German Family Law
Practice Group: German Family Law
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