"It is far easier to become a father than to remain one." — Vasily Klyuchevsky
In today's world, it is common to see a child, or several children, being raised outside the traditional family model, in which father and mother live together as a married couple. No one is surprised anymore when a woman or a man, at a certain point in life, decides to have a child and raise it alone, without a partner. Where having a biological child is not possible for one reason or another, many men and women — married and single alike, who wish to become parents — decide to adopt, which is not unusual among same-sex couples either. Unfortunately, it also happens fairly often that spouses or partners with children together separate, leaving the children to live permanently with one parent. There are countless different life stories and difficult situations. Looking at the legal side of the matter, virtually no two cases are alike, and each requires an individual approach.
So, as a general rule, what does the situation around raising children after a divorce look like in Germany?
Under §1626(3) of the German Civil Code (German: Bürgerliches Gesetzbuch, BGB), a child needs contact with both parents, as well as with other people close to the child whose involvement supports the child's development. In Germany, then, the right of parents and close relatives to have contact with a child (German: Umgangsrecht) is enshrined in law and is one of the fundamental parental rights. Parents have both the duty and the right to care for their minor child. Parental care covers not only caring for the child and the child's property, but also representing the child's interests. Under German law, therefore, even where the parents separate and their shared child lives with one of them, both the other parent and the child retain the right to spend time together regularly and stay in touch. Naturally, as a general rule the other parent remains entitled to take a full part in the child's life and to make all important decisions concerning the child. In Germany, traditionally known for its bureaucratic, conservative approach to many administrative procedures, this is reflected, among other things, in the requirement that both parents give their consent, either through a jointly signed declaration or through separate documents each parent signs individually. Such situations, where the consent and signature of both parents (provided neither has been deprived of parental rights) are required, can arise fairly often before the child reaches adulthood — for example, when applying for child benefit (German: Kindergeld) and other social payments, opening a bank account, enrolling the child in school and securing a place in an after-school program, and when settling other important matters relating to the child's health and healthy development. It is a great blessing, both for the child and for the parents, when the adults find the strength, after a separation, to maintain a good relationship and do everything they can to keep the parents' separation from affecting their children's lives. It is far worse when the adults cannot reach an amicable understanding and instead begin putting obstacles in the way of their former partner's peaceful life. The situation becomes even more complicated when the other parent lives in a different country, or when that parent's whereabouts are unknown altogether. In this article, we would like to describe one such difficult case, in which we were able to help a single woman with a child who urgently needed expensive medical treatment.
Important at Divorce
Under §1626(3) BGB, a child needs contact with both parents, as well as with other people close to the child whose involvement supports the child's development.
A woman named Mariam (name changed) came to us for a consultation. She had lost hope of finding a way out of her difficult situation on her own, and came to our firm hoping for sound advice and support with her complicated circumstances. We began by listening carefully to our client's story and assured her that we would do everything in our power to provide professional legal help. As it turned out, Mariam had permanently relocated from Armenia with her then-10-year-old son roughly four years earlier. Her ex-husband, who had stayed behind in Armenia, remained in regular contact for a while after the move, visiting the child every few months or having him stay during school holidays, and giving his ex-wife money for the child. Later, he started a new family, contacted them less and less often, and eventually disappeared altogether. For a while, this did not upset Mariam too greatly — she had long since grown used to dealing with every problem herself and shouldering responsibility alone. About a month before she came to us, however, her son had been given a serious medical diagnosis requiring expensive treatment that she could not afford to pay for in full on her own. On relatives' advice, she applied for the state support to which she was entitled in Germany, but ran into an unexpected problem. Since Mariam's ex-husband still held full parental custody, the application had to be filed in the name of both parents — meaning the form also had to bear the boy's father's signature. Unfortunately, none of the mother's pleas, nor her explanations of the problem in broken German, made any impression on the officials. The staff of Germany's strict bureaucracy insisted on literal compliance with the established procedure. With the help of relatives in Armenia, Mariam managed to track down her ex-husband's phone number and explain the situation to him. She found no support there, either — the man had no wish to deal any further with problems from his "past life," telling her that she now had to bear the consequences of her own decision to move to another country. The child's father accordingly asked our client not to bother him again, whether about financial support or about signing any documents. Strange as it may seem, the man also declared that he had no intention of giving up his parental rights to his only son at the time, and even suggested that the boy move back to him in Armenia, where he supposedly intended to arrange treatment for him there. Naturally, that prospect was completely unacceptable to Mariam, and she came to us, having already heard from friends that family-law matters were one of our firm's core areas of practice. Since the child needed treatment as soon as possible, we understood that we had to act quickly and decisively, using every legal avenue available to resolve the critical problem facing our client.
We decided to file a petition with the court to secure sole custody (German: Sorgerecht) for Mariam — that is, the sole right to make every decision concerning the minor child's life: choice of name, place of residence, school, principles of upbringing, and so on. Recognizing how important this task was, we gathered comprehensive evidence that: · Mariam's son urgently needed treatment for a serious illness; · the treatment would be expensive and long-term; · our client had no way to pay for such treatment on her own; · the child's father lived permanently in another country, paid no child support, and had not taken part in his son's life for several years; · there was no way to obtain the father's consent; and · Mariam met every requirement for state social assistance. The only obstacle was that the application had to be filed in the name of both parents.
The petition, drafted by our firm's family-law lawyer, was accordingly filed with the court together with a complete set of supporting documents. Given the importance and urgency of the matter, we also filed a motion asking that the case be handled under expedited proceedings. To our client's great relief, a favorable outcome was not long in coming — within just two weeks, we received the court's decision granting Mariam full parental custody of her minor son. This allowed her to promptly obtain the relevant authority's approval to cover the costs of the urgently needed treatment.
It is worth noting that, with this court decision in hand, the mother will also be able to make other key decisions about her son's life and health in the future — which will undoubtedly make life considerably easier for this small family going forward. On this happy note, we said goodbye to our client, wishing her strength and patience, and her son a speedy recovery. As the Soviet writer Anton Makarenko aptly observed: "Our children are our old age. Proper upbringing is our happy old age; poor upbringing is our future grief, our tears, our guilt before other people, before the whole country." We urge all of our readers who are parents to keep these wise words in mind — and if the twists and turns of family life call for legal help, we invite you to a consultation at our law firm, which has built a strong reputation over many years.
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