What is the custody rule

Rights and obligations These regulations apply to custody

What is meant by custody?

The right to parental custody includes personal custody and the right to property. Personal custody rights include, for example, the right to care for and raise the child, the right to determine the place of residence and the right to determine how the child interacts with third parties. The right to determine property includes, for example, the management of the child's property and assets or the right to conclude contracts for the child.

What happens to custody of their children after separation and divorce?

In the vast majority of cases, even after the parents have separated, the parents have joint custody. On request, the court can also grant custody of one parent or parts of it alone. The court will grant such a request, for example, if the parents lack a minimum level of willingness or ability to cooperate for the benefit of the child and the child is severely burdened by the constant arguments between the parents. Even if one parent is far away - e.g. B. moves abroad - and the exercise of joint custody presents the parents with practical difficulties, a transfer to one parent is an option. In such a case, however, the parent actually caring for the child can also be given power of attorney to exercise custody. A court decision is then not necessary.

Most of the time, the mothers are granted custody. In the event of a controversial decision on custody, is there a legal priority for the mother?

No, only the best interests of the child are decisive. The decision takes into account which parent is better suited to bring up and care for the child, with whom the child is more closely connected and with whom the willingness and ability to support is better developed. The principle of continuity is also taken into account. If the child has been living in one parent's household for a long time and both parents are equally well suited, the court is unlikely to order a change to the other parent.

The fact that the mother is more often granted custody in the event of a dispute is usually due to the fact that in everyday life, especially with younger children, the mother devotes herself more intensively to the children than the father and the closer ties between the children and her with otherwise the same upbringing suitability of both parents can make the difference.

What is the importance of the child's will?

Depending on the age of the child, when deciding on custody, the child's will also plays a role. In this respect, however, special attention must be paid to whether the will is formed independently or - which unfortunately happens not infrequently - is based on massive influence from a parent. Aptitude for upbringing also includes so-called attachment tolerance, i.e. the ability and willingness to allow the child to come into contact with the other parent without fear and without negative influences. Anyone who constantly belittles the ex-partner in front of the child, makes contact more difficult or even refuses to do so, may risk losing custody of the other parent.

What about custody of unmarried parents?

If parents are married to each other when the child is born or if they marry later, joint custody arises by law. In the case of unmarried parents, the father can obtain joint custody by declaring to the youth welfare office or a notary that they want to exercise custody together. Such a declaration of custody can be made before the birth. If the mother does not agree to joint custody, an application for the transfer of parental joint custody can finally be submitted to the family court (Section 1626a BGB).

What are the chances of a request from the father to transfer joint custody if the mother does not agree?

Since a change in the law that came into force in May 2013, the illegitimate father has the option of gaining parental co-custody against the will of the mother. The prerequisite for a successful application is that paternity has been established and that the transfer of custody does not conflict with the best interests of the child. Here, too, a minimum level of willingness and ability to cooperate on the part of the parents is required. However, father and mother are obliged towards their child to actively seek an objective understanding with the other parent. Therefore, the mother cannot simply force the rejection of the father's application for custody by simply refusing to communicate with the father.

What are the chances of an application from the father to set up the change model?

In a much-noticed decision from 2017, the Federal Court of Justice made it clear that the courts may order care for the child in the so-called parity exchange model - that means care of the child by father and mother at roughly equal proportions of time - even against the will of one parent . So far this has been very controversial and has been rejected by a significant 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 appropriate to the welfare of the child if there is a sufficiently stable communication basis between the parents. So for parents who take every little thing as an occasion for a violent argument (even with the involvement of the children), the changeover model will hardly be the right one.

After the separation, can the mother move to another place without the consent of the father?

If, after the separation, the mother intends to move with their child to another place of residence that is far away from their previous place of residence or even to a foreign country, then it is not uncommon for conflicts between the parents, because the mother’s right to freely conduct life collides with the mother Right of the father to be as uncomplicated as possible with the child. A change of residence of the child, if the parents have joint custody, requires the consent of the co-custodian. If the parents cannot come to an agreement, an application must be made to the court for the transfer of the right of residence or custody to one parent alone. The decisive factor for the court is which decision best suits the best interests of the child. For example, if the child's ties to the mother are particularly close, this can outweigh the disadvantages of a change of environment (kindergarten, school, etc.) and the more difficult contact with the father. Conversely, however, if the child is closely tied to the previous place of residence, the father remaining there, the grandparents and / or friends, etc., a change of residence to the father's household may also be indicated. The circumstances of the individual case are always decisive here.

What options does a father have if the mother refuses to have any contact with their child?

First, the youth welfare office should be turned on and asked for mediation. If this is unsuccessful, a contact arrangement can be applied for at the court. A court decision is binding for the caring parent and can be enforced by imposing fines of up to 25,000 euros, or alternatively, custody. The court can also appoint a guardian who has the right to demand that the child be surrendered and to determine the child's stay for the duration of the contact. If the imposition of administrative measures is unsuccessful, the court can order the application of direct coercion, which, however, may not be used against the child himself to enforce contact.

In individual cases, the withdrawal of custody can also be considered, since the thwarting of the child's contact with the other parent reveals a massive restriction in the ability to bring up children. A transfer of custody to the father often fails in practice because the child has not been able to develop a bond with him due to the long estrangement or because the child rejects the father - be it because of an independent will or because of a corresponding influence by the mother.

Are there legal requirements on how often and for how long a parent can see the child who is not living with them?

The law does not make any provisions on the structure of the right of access in individual cases. Ideally, the parents agree on when, how often and for how long the other parent can be with the child. If necessary, you can ask the youth welfare office for support in reaching an agreement. If the parents do not succeed in regulating the contact by mutual agreement, the family court decides on the arrangement of the contact taking into account the specific circumstances of the individual case, in particular the interests of the child and the parents. Often, the person authorized to have access is granted access every other weekend and, in addition, one afternoon a week. It is also common to have a more or less balanced division of the holiday periods and a balanced holiday regulation.

If a same-sex partnership fails, in which the biological child of one of the partners lived, does the other have a right of access to this child after the separation?

In addition to the other parent, who has a right of contact with the child, grandparents, siblings, step-parents and other close caregivers also have the right to contact the child, but only if the contact serves the best interests of the child. If there was a parent-like relationship with the child due to a longer partnership and if there are no other reasons, the former partner's right of access may well be considered.

What can parents with joint custody do if they cannot agree on the school their child should attend?

If the parents cannot agree on a certain matter, the regulation of which is of particular importance for the child (e.g. choice of school, choice of first name, medical interventions, possibly also long-distance trips with children to foreign cultures etc.), so the family court can transfer the sole right of determination over this matter to one of the parents upon request.

The court must make the decision that best suits the best interests of the child. This can also lead to a rejection of the application, with the result that the measure intended by the applicant (baptism, enrollment in a private school, etc.) cannot be implemented without the consent of the other parent.

What happens if the custodial mother dies? Will custody then automatically pass to the father or can the grandparents also apply for custody?

If the deceased mother was entitled to parental care together with the father, from now on it is exercised by the father alone. If the deceased parent had sole custody, the family court must transfer custody to the surviving parent if this is not contrary to the best interests of the child. Otherwise a guardian must be appointed. Here, for example, the grandparents, a step-parent or an older sibling come into consideration.