The German word Sorgerecht means custody, referring to the right of parents to take care of their children and to manager any assets. Receiving custody of the child means acquiring rights, for example: the right to care for the child and to educate him; the right to determine his place of residence; the right to decide on his health and the right to establish his contact with other people. Custody, as mentioned above, also includes the right to administer any property in the possession of the child and/or the right to enter into contracts on the child’s behalf.
What is the difference between children’s custody (Sorgerecht) and visiting rights (Umgangsrecht)?
Visiting rights are independent of custody and include the right of the child and the non-custodial parent to spend time together regularly. The right of parents to have contact with their children is protected by constitutional law and can only be denied for a long period, or even permanently, if the well-being of the child would otherwise be endangered. The right of visit may also be granted to persons other than parents, e.g. grandparents. This, however, only if the contact brings real well-being to the child’s life.
What happens with child custody after separation and divorce?
In the majority of cases, joint custody of the parents remains the same even after a divorce. However, on request, the court may also grant custody, or parts thereof, to a single parent. The court will grant such a request, for example, if the parents are unwilling or unable to cooperate for the sake of the child, who is severely affected by the constant quarrel between the two former spouses.
If a parent moves away, for example abroad, and there will be problems with the joint custody, the idea of proceeding with sole custody to a single parent may be considered. In this case, it will not be necessary to go to court, as a simple delegation (Vollmacht) may be sufficient to grant exclusive custody to the other parent.
In most cases, mothers are granted custody. In the event of a contested custody decision, is there legal right of precedence for mothers?
No, it does not exist because the decisive factor is always the well-being of the child. In making the decision, account is taken of which parent is best suited to the education and care of the child, with whom the child has closer ties and who is more willing and able to provide support. The principle of continuity is also be taken into account. If the child has already lived in one parent’s home for some time and both parents are equally suitable, it is unlikely that the court will grant the transfer to the other parent’s home. The reason why custody is more often granted to the mother in a dispute is because in everyday life, especially with younger children, the mother dedicates herself to the children more intensively than the father, and the closer bond of the children with her in this respect may be the decisive factor, if both parents are otherwise equally suitable to raise the children.
What is the importance of the child’s will?
The child’s will also plays an important role according to his age. In this regard, however, particular attention should be paid to the fact that the child’s will is independent and not misled by the massive influence of a single parent. The so-called attachment tolerance, i.e. the ability and willingness to allow the child to continue to have contact with the other parent without fear and without negative influences, also belongs to the suitability of education. Those who constantly discredit the ex-partner in front of the child, make contact more difficult or even completely refuses them, in certain circumstances risk losing custody of the children to the other parent.
What about custody of unmarried parents?
If the parents are married to each other at the time the child is born or if they marry later, joint custody is created by law. In the case of unmarried parents, the father can obtain joint custody by going, together with the mother of the child, to the family office (Jugendamt)to declare, with the consent of the partner, that he wants to obtain the joint custody. Such statement may be made before the birth. If the mother does not accept joint custody, the father may apply to the family court, i.e. the Familiengericht (§ 1626a of the Civil Code).
What are the chances of a father’s request for transfer of joint custody by if the mother does not agree?
Since 2013, following an amendment to the law previously in force, the illegitimate father has the possibility of obtaining joint custody even against the will of the mother. The prerequisite for the success of the application is that paternity is established and that the transfer of custody is not contrary to the child’s best interests. Again, a minimum of willingness and ability to cooperate on the part of the parents is required. However, father and mother are obliged towards their child to make active efforts to reach an objective agreement with the other parent. For this reason, the mother cannot simply refuse to communicate with the father and thus force the rejection of the father’s application for joint custody.
What are the chances that a father might request the establishment of the alternating equality model?
In a well-known decision taken in 2017, the Federal Court of Justice made it clear that the courts can order that the child be cared for according to the so-called alternating parity model (Wechselmodell) – i.e. the care of the child by the father and mother in more or less equal proportions over time – even against the wishes of a single parent. So far this issue has been very controversial and has been rejected by a considerable number of courts. At the same time, however, the Federal Court of Justice has made it clear that childcare in the alternating model can only be in the best interests of the child if there is a sufficiently solid basis for communication between the parents. In other words, the alternating model is unlikely to be the right choice for parents (and children of those parents) who take every little thing as grounds for violent disputes.
After the separation, can the mother move to another place without the father’s consent?
If, after separation, the mother intends to move with her child to another place of residence away from the previous one or even abroad, conflicts often arise between the parents, because the mother’s right to a liberal lifestyle clashes with the father’s right to care for the child as simply as possible. If the parents have joint custody of the child, a change of residence requires the consent of the person with joint custody.
If the parents cannot reach an agreement, a request for transfer of the right of residence or custody to a single parent must be submitted to the court. The court will decide which decision is best suited to the child’s well-being. If, for example, the child’s relationship with the mother is particularly close, this can overcome the disadvantages of a change of environment (kindergarten, school, etc.) and the difficulty of contact with the father. On the contrary, however, if the child has close links with his or her previous place of residence, with the father who remains there, with grandparents and/or friends, etc., this can be overcome. The circumstances of the individual case are always decisive in this situation.
What are the options for a father if the mother denies him any contact with his child?
First, you should call the Jugendamt office and ask for mediation. In case of failure, you can go to court. The court decision is binding on the responsible parent and can be enforced by imposing a fine of up to 25,000€ or, alternatively, imprisonment. In certain cases, the court may also appoint a tutor to take the child into custody (within hours to be determined by the tutor) and take him in another place. If the imposition of administrative measures is unsuccessful, the court may order the use of direct coercion, which however cannot be used against the child to enforce the contact.
In individual cases, withdrawal of custody may also be considered, as the prevention of contact between the child and the other parent reveals a significant limitation in the child’s education. In practice, however, the transfer of custody to the father often fails because the child has not been able to develop a bond with him or her due to long alienation or because he or she rejects the father – either because of an independently formed will or a corresponding influence of the mother.
Are there legal requirements as to how often and for how long a parent can see the child who is not living with him or her?
The law does not contain provisions on the structure of the right of access in individual cases. Ideally, the parents themselves agree when, how often and for how long the other parent can stay with the child. If necessary, they can ask the Jugendamt for assistance in reaching an agreement. If the parents are unable to reach an agreement, the Familengericht (Family Court) decides on the most suitable form of contact, taking into account the specific circumstances of the individual case, in particular the interests of the child and the parents. The person entitled to contact can spend at least one weekend out of two with the child (often also the so-called “long” weekend, e.g. from Thursday after school until Monday morning) plus one afternoon a week. It is also common to divide holiday periods in half and have a balanced holiday arrangement.
If a same-sex couple, in which the natural child of one of the partners was living, decides to separate, does the other partner have the right to have contact with this child after the separation?
In addition to the other parent, who has a right of contact with the child without further adoptions, grandparents, siblings, stepmothers and other close relatives also have a right to have contact with the child – but only if the contact serves the well-being of the child. If there was a family relationship with the child due to a long relationship with the parent, it is certainly possible for the former civil partner to maintain contact with the child.
What can joint custody parents do if they do not agree on the school their child should attend?
If the parents disagree on issues that are important for the child’s life (e.g. choice of school, medical interventions, possibly even long-distance travel with children in foreign cultural circles, etc.), the court must make the decision that best suits the child’s well-being. This may also lead to the rejection of the application with the consequence that the measure envisaged by the applicant (baptism, enrolment in a private school, etc.) cannot be implemented without the consent of the other parent.
Can the father simply stop paying child support because of part-time work?
If there is an official document specifying the obligation to pay alimony, the constraint to pay can only be modified in the event of a substantial change in circumstances. Short-time work that is only temporary and does not significantly reduce income throughout the year does not justify a reduction in the obligation to pay the child support. The situation is different if short-time work and thus the loss of income continues for a longer period of time and the debtor is no longer able to pay the fixed amount. In this case, however, the payment should not simply be interrupted, but it should be made an attempt to discuss with the creditor in order to try to reach a valid economic agreement for the whole period of short-term work. In the event of failure, an application for a reduction may have to be made to the court. The creditor may submit the application to the court with a maximum retroactivity of one year from the time the application is made to the court.
Does the father who adopted his partner’s child have to pay alimony if she separates from him a year after the adoption?
The adoption of the partner’s minor child leads to full paternity with all rights and obligations. The relationship of the child with the natural father is terminated with the corresponding legal consequences in terms of maintenance, but also, for example, in terms of inheritance law, etc. Therefore, the adoptive father remains obliged to support the child even if the parents separate.