Legal advice on custody and access

Children in separation conflict

If you have children and your marriage or partnership breaks down, it is a great strain for everyone. The loss of familar settings usually triggers fears of loss and insecurity in children and parents alike. The open conflict among the parents and the related psycological injuries place such a significant strain on parents that they are often hardly able to recognise and satisfy their children’s needs.

Where the children live after the separation and how the contact with the other parent will be in the future is often a highly emotional topic. Many parents find it difficult to allow their children to continue to have unclouded contact with the other parent, when that parent has hurt them so much. This becomes dangerous when the parents badmouth each other in the separation conflict and try to draw the children to their own side. The resulting conflicts of loyalty put a heavy strain on many children. In the worst case, they become mentally ill and suffer from the consequences for the rest of their lives.

Both parents have a special responsibility here. Chances for a peaceful future coexistence are highest when the children are allowed to maintain close ties with both parents or to rebuild such ties, and when the parents, despite the breakdown of their relationship as a couple, do everything in their power to remain responsible parents. Overcoming one’s own anger, disappointment and hurt, at least to the extent necessary for the children’s well-being, is one of the greatest challenges for parents in the conflict of separation.

The legal system is designed to protect and maintain family relationships wherever possible. The protection of minor children is the very essence of this system. The children’s welfare is the guiding principle of the entire law of child custody and access. The law has recognised the special need for protection of children in the event of parental conflict. The welfare of the child takes precedence over the personal well-being of both parents. Parents are trusted to have greater insight and are therefore given greater responsibility.

If you have children, you should seek legal help early on in the separation and divorce process. I will be happy to advise you not only on the legal issues, which you will find outlined below, but also, based on my many years of experience as a family lawyer, on the issues that are often much more pressing for you:

Where can I find the support I need to get through this crisis and to be able to support my children well? Where can my children find support?
In what context should the necessary discussions with my spouse or partner be conducted in order to avoid escalating the situation further and to find a solution that is good for our children?
What can I do myself to make the situation easier for my children?

What does custody entail?

Child custody refers to the constitutionally protected right and duty of parents to care for and educate their children. Parents have both personal and financial custody of their children.

Personal custody primarily concerns decisions about the child’s name and religion, choice of school, important operations (including abortions and cosmetic surgery), education and career choice, passport matters, the child’s residence, his or her dealings with third parties and, in general, his or her care, upbringing and supervision.
Financial custody concerns decisions regarding the child’s financial matters, in particular the administration of assets that the child has inherited or received as a gift, or the commencement of gainful employment.

In addition, parents are the legal representatives of their children in legal matters concerning them.

Who has custody?

The question of who has custody of a child is determined by whether or not the child’s parents were married when the child was born.

If the parents were married to each other when the child was born, both parents have custody of the child.
If the parents were not married when the child was born, the mother generally has sole custody of the child. The mother can have the relevant youth welfare office (Jugendamt) issue a negative clearance certificate to prove her sole custody, stating that no custody declarations have been made for the child in question.

The child’s father can obtain custody if he:

together with the mother, files a joint declaration of custody with the youth welfare office or a notary before or after the child’s birth, after having previously acknowledged paternity of the child,
marries the mother, or
in the event that the mother rejects joint parental custody, files an application with the family court for the granting of joint or even sole parental custody and the family court grants the application.

What happens to custody rights in the event of separation or divorce?

In principle, joint custody remains in place even in the event of separation or divorce. This means that decisions of significant importance to the child can only be made by both parents together. In matters of everyday life, however, the parent with whom the child lives may make decisions alone.

It is possible for a parent to apply to the family court for the cancellation of joint custody and a transfer of sole custody to him- or herself. With the consent of the other parent, the court will normally grant the application, although children over the age of 14 have a certain say in the matter.

However, custody cannot be withdrawn from the other parent against his or her will unless

the revocation of joint custody is in the best interest of the child and
the transfer of sole custody to the parent making the application to the court is in the best interest of the child.

In such cases, the court weighs the interests of the parties against each other on the basis of the criteria developed by case law. The well-being of the child is always paramount. In case of doubt, the interests of the child also take precedence over the interests of the parents or one of the parents.

In such proceedings, in addition to hearing the child, it is crucial how comprehensively and objectively the legal representatives of the parents present their case in court.

In these proceedings, which are so important for you and your child, you should be represented by experienced specialist lawyers in family law.

Can you just move to another city or abroad with your child?

Custody also includes the right to determine the place of residence of a minor child. Since both parents have this right, one parent cannot move to another city or even abroad with the child without the consent of the other parent. He or she can of course move there and cannot be forced to stay in the previous place for the benefit of the child in order to facilitate contact with the other parent. But he or she cannot just take the child with him or her to the new place.

If you have decided to move to another city when you separate or divorce and want to take your child with you, you have to file a petition with the competent family court for the transfer of the right to determine residency (usually while maintaining custody in all other respects). Here, too, the court must make a decision that is in the child’s best interests. The decisive factors here are continuity of care, the quality of the parent-child relationship, the parents’ ability to care for the child, their educational aptitude, their ability to provide the child with comprehensive support, the degree to which one parent accepts the attachment of the child to the other parent and, to a certain extent, the child’s will.

How is a court case in custody and access matters conducted?

Disputes regarding custody and access can be dealt with as part of divorce proceedings (in what is known as a combined divorce proceeding) or as a separate proceeding. The court investigates ex officio in such proceedings. The well-being of the child is the all-important guiding principle.

The court will usually appoint a guardian ad litem for your minor child who will exclusively represent the interests of the child in these proceedings (‘lawyer for the child’). Guardians ad litem are usually lawyers, psychologists or members of social professional groups. The guardian ad litem will normally meet both parents and, of course, the child in person before the hearing and then write a report to the court.

The youth welfare office is also involved. Both the guardian ad litem and a representative of the youth welfare office are present at the court hearings.

In order to get a comprehensive picture of which decision is best for the well-being of the child, the family courts occasionally also call in psychological experts who deal with the family members involved and prepare an expert opinion based on their investigation. The courts often follow the recommendations of the expert.

The judge will usually also hear your child to determine its will. This means that the child must talk about its situation with at least two adults: the guardian ad litem and the judge.

As an experienced family lawyer, I will support you in putting the interests of your child at the forefront of your concerns from the outset and in examining the situation from its perspective in order to be successful in court.

Together with you, I will go through how you may be seen and judged by the guardian ad litem, judge and youth welfare office, and how you can position yourself appropriately to achieve an acceptable outcome for you and your child. Ultimately, the judge’s decision will depend on how he views you and the other parent as individuals and how much he trusts each of you to respond to your child’s needs.

Who gets custody if the sole custodian dies?

Many single parents worry about what will happen to their child if they die. In this case, the law provides that custody is to be transferred to the other parent if this does not conflict with the child’s best interests. Otherwise, a guardian is to be appointed by the court, who may also be the mother’s partner or the child’s stepfather. The family court, in consultation with the youth welfare office, decides on this. As a rule, it also takes into account the wishes of the child, provided that the child is old enough.

What is a custody will?

If you do not want the other parent to have custody of your child after your death, you can try to prevent this by drawing up a so-called custody will during your lifetime. If you explain in detail why the other parent should not be granted custody (e.g. because he or she has not had any contact with the child), but instead another person named by you, there is usually a good chance that your wishes will be taken into account after your death.

Please consult a specialist lawyer for the drafting of a legally valid custody will and for further action.

Childcare arrangements after separation

Nowadays, there are different living arrangements for children after their parents separate. The law does not specify any particular arrangement. The parents can therefore decide for themselves where the children will live as long as this does not endanger the children’s well-being.

Residency model: Most children still live with one parent after their parents separate. The other parent then exercises a right of access, i.e. the child regularly visits the other parent at its home or spends time with the other parent elsewhere.
Alternating model: Many parents are also deciding to share childcare. The children are then cared for alternately by the parents in their respective households for approximately equal periods of time. They spend, for example, one week with the mother and one week with the father (pendulum model).
Nest model: In the rather uncommon nest model, both parents have their own homes and take turns returning to a shared home for certain periods of time to look after the children. In this case, both parents commute. The need for three homes means that this model involves higher costs.
External care: In special cases, such as when children live at boarding schools, the children are not cared for by either parent, but by third parties.

The organisation of care also has an impact on the question of who is financially responsible for the child. The alternating model raises many other legal issues, since the legal regulations date from a time when the residency model was the only common care model.

It is advisable to seek legal advice on the financial and practical implications of the different models. Legislation and case law in this area, more than almost any other area of family law, is currently in a state of flux.

What is meant by right of access?

According to German law, a child has the right to maintain contact with both parents after their separation. Every parent is not only entitled to maintain contact with the child, but also required to do so.

The right of access ranks equally with custody and is equally protected by German constitutional law. According to the traditional definition of the Federal Constitutional Court, the purpose of access is to enable the parent who is not the primary caretaker to “personally satisfy itself of the child’s physical and mental well-being and development on an ongoing basis, to maintain family relationships with him, to prevent alienation and to take account of the mutual need of love.”

According to the law, other important caregivers of the child, in particular grandparents, siblings, (former) stepparents and foster parents, also have a right of access to the child, but only if such contact serves the best interests of the child.

During the contact periods, the person exercising the right of access has the right to make sole decisions in matters of actual care, such as bedtimes, nutrition, personal hygiene, leisure activities, TV and smartphone times, as well as in the event of imminent danger.

Access agreements

After a separation, it is important to reach an agreement on access as soon as possible in order to enable the child to have contact with the parent who is not the primary caretaker (in the case of the residency model). As a first step, you can get free help from the youth welfare office. The youth welfare office will then also contact the other parent on its own.

Typically, such parental agreements regulate:

the frequency and duration of access (e.g. for school children: every two weeks from Friday, 6 p.m. to Sunday, 6 p.m., plus every second Wednesday evening);
how vacation periods are split up;
how church holidays and long weekends are split up;
the handover process;
an obligation not to speak badly about the other parent (so-called good conduct clauses);
telephone and messenger communication with the child outside of the agreed-upon contact periods.

Even with babies and toddlers, there is a right of access. However, the type and extent of contact must be based on the young child’s sense of time and abilities. Therefore, shorter but more frequent contact is usually recommended here.

Consult your family lawyer about the various options for formulating your access agreement and find the right solution for you. Your lawyer will contact the other parent on your behalf and attempt to negotiate an agreement that suits all parties.

Please note that such access agreements are only enforceable if they have been approved by the family court.

Who pays the costs of access?

The costs incurred in exercising contact are in principle to be borne by the person who is entitled to have access. This person is required to pick up the child at an agreed upon place and to bring him or her back there, and to bear the related travel costs. They must also bear the costs of the child’s meals and overnight accommodation during the contact periods. They may not reduce the maintenance paid by them by these costs.

In exceptional cases, such as when the parent who is the primary caretaker has moved to a distant city with the child and the other parent requesting access cannot reasonably be expected to bear the costs alone due to its limited financial means, the parent who is the primary caretaker must also contribute to the costs of contact or cover the travel costs alone.

Court settlement of the right of access

If no amicable settlement regarding access can be reached, either because one parent denies the other parent the right of access, among other reasons, because it believes the other parent poses a danger to the child, or because the parent entitled to access shows no interest in the child or repeatedly cancels agreed upon visiting times, it is possible to apply to the family court for a judicial settlement of the right of access. The court proceeding in an access case is gouverned by the same principles as a custody proceeding.

The court will usually push for the parents to reach an amicable settlement regarding access.

Only in extremely exceptional cases, such as a concrete risk to the child’s well-being (e.g. risk of abuse), will the court order a ban on access, since this constitutes a significant encroachment on the fundamental rights of the excluded parent.

So-called supervised access can also be ordered by the court to gently reintroduce access after a long break or to protect the child if there is a risk to the child’s well-being. The contact then takes place, for example, on the premises of the youth welfare office or another agency under the supervision of a third party (access companion).

According to recent case law, the family court can also establish an alternating model against the will of one parent under certain circumstances.

As a family lawyer, I have already conducted numerous custody proceedings in a wide range of situations and helped develop solutions, for example, for contact between parents living far apart, in cases of persistent refusal of contact by the child, domestic violence, a lack of interest in contact on the part of the father and siblings living separately.

Please feel free to contact me at any time if you need advice on your specific situation.

Contact

If you have any questions about your children’s situation, you can contact me by phone at any time during my office hours, or outside of office hours by email. I will get back to you as soon as possible.

T: 06174 – 935 75 70
E: marx@familienrecht-marx.de

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