Everyone brings their own meaning to the concept of "raising a child." But broadly speaking, the task of upbringing is a set of measures aimed at shaping a personality. Upbringing is closely bound up with a child's socialization into society, with instilling certain rules of behavior, and with respect for values. The family is the initial foundation on which these important life processes are built. It is within the family that a child first forms an idea of good and evil, and of how people relate to one another. The beginnings of character and of life principles are likewise shaped on the basis of the family. That is why, under German law, parents have equal rights with respect to their child — since either of them can have a positive influence on the child and instill those very first formative skills. In legal terms, the concepts of "upbringing" and "maintenance" of children are clearly distinguished. A parent, for example, may pay child maintenance faithfully while showing no interest whatsoever in the child's life and taking no part in raising the child.
The institution of parental custody is of particular importance in family law. Under § 1626 of the German Civil Code (German: Bürgerliches Gesetzbuch, BGB), parental custody comprises care both for the child's person and for the child's property. German law provides that where a child is born within a marriage, both parents are entitled to exercise parental custody. The German Civil Code further establishes that a child's welfare is served by direct contact with both parents, as well as with other close relatives.
Important at Divorce
Under § 1626 of the German Civil Code (German: Bürgerliches Gesetzbuch, BGB), parental custody comprises care both for the child's person and for the child's property.
Under Article 6 of the German Constitution, marriage and the family enjoy the special protection of the state. Caring for children and raising them are both a natural right of parents and their primary duty. The law grants mothers and fathers considerable latitude when it comes to raising their children. They decide which values to instill in their children, which school the child will attend, and how, for example, they would like to arrange joint custody of the child in the event of a divorce. Moreover, it is primarily the parents themselves who answer questions such as what counts as healthy food, how much time a child may spend in front of the television without harm to their health, what a child's daily routine should look like, and what would be worthwhile for the child to do during school holidays. When disputes arise within a family, the parents still generally try to reach a compromise. As a rule, no one wants the state to intervene in such discussions. Government authorities, as a general matter, exercise only general oversight of how parents fulfill their duties, without interfering with the individual characteristics of the upbringing particular to any given family.
As a rule, custody (German: Sorgerecht) over the children remains with both parents even after a divorce. Unfortunately, it sometimes happens that separated parents find it difficult to agree between themselves on how to continue raising their child. On a well-founded application by one of the parties, a court may transfer custody to one parent, but this does not amount to a deprivation of parental rights. The parent to whom custody is transferred decides independently (that is, without needing the other parent's agreement) on matters such as the child's place of residence, any change of residence, travel abroad, and medical treatment in the event of illness, among other things. Transferring custody to one parent, however, does not restrict the other parent's right of contact with the child (German: Umgangsrecht). The arrangements for contact between the child and the parent who does not hold custody are set either by agreement between the parties or by court order. In the latter case, the court determines the frequency, duration, time, and place of contact between the parent and the child.
Unfortunately, our client Olga (name changed) was unable to reach an amicable agreement with her husband on questions relating to raising their children. The couple had been living continuously in Germany for about ten years, where they were raising two sons — 7-year-old Dima and 5-year-old Alex (names changed). Olga's husband Rustem (name changed), who was born and had spent most of his life in Kazakhstan, always held his own views on life and child-rearing, which Olga largely did not share. Rustem, for instance, believed that in order to preserve the family's national traditions and customs, the children should not attend a German kindergarten or associate with German children their own age. German was strictly forbidden in Rustem's household. His children, though born and raised in Germany, were not allowed to speak German with one another at home, nor to read German books or watch German-language cartoons. What's more, Rustem, being a rather hot-tempered and impulsive man, had on several occasions raised his hand to the children and struck them painfully. Whenever his wife pleaded with him that this was unacceptable, in her view, and that he needed to "keep himself in check," he told her not to interfere in a perfectly normal method of upbringing. Rustem always stressed that this was exactly how he himself, along with his four brothers, had been raised — and that they had all grown up to be decent people. He gave rather little thought to the laws, customs, and mores of the country in which he had continuously lived for the past ten years, holding to the view that his home was his castle. Unfortunately, these methods of upbringing — which apparently were meant to preserve the family's native culture — were preventing the children from developing harmoniously and integrating into German society. What's more, the periodic physical violence against the children risked affecting their mental health, to say nothing of the fact that it is strictly prohibited under German law. Conflict began to grow between the spouses over this issue, and after a year of constant quarrels and grievances, Olga made the difficult decision to divorce. Rustem did not object very strongly and moved out of the shared apartment himself, on the condition that he would continue to be the one raising the children. For the reasons described above, Olga could not accept this and did everything she could to shorten the visits, fearing to leave the children with their father for a full day. Her ex-husband's negative reaction was not long in coming — Olga soon received a court petition demanding that Dima and Alex live with Rustem half the time, under the so-called "Wechselmodel" (alternating-residence model). It is hard even to imagine the desperate situation our future client found herself in. She came to our law firm for the legal help she urgently needed at that moment.
Having reviewed the case file and the circumstances of the former spouses' and children's lives, our firm's lawyer assured our client that he would do everything possible to see that her rights, as well as the children's interests, were respected, and immediately got to work. He prepared a detailed, well-reasoned response to Rustem's petition, explaining why it was in the children's best interest to live with their mother most of the time. He cited specific examples illustrating the father's methods of upbringing, including the physical punishment affecting the children's mental health. To clarify the circumstances of the case, to analyze the family situation and the relationships between the parents and the child, and to later provide the court with the relevant opinions, the Youth Welfare Office (German: Jugendamt) and a specially appointed representative safeguarding the interests of the minor children (German: Verfahrensbeistand) also took part in the proceedings. In addition, in order to form a complete picture of the family situation, the judge decided to speak with the children themselves. The conversation with the children took place in the courtroom in the absence of their parents or any other person capable of influencing the children's candid account. During the conversation, it emerged that the children still loved their father and wanted to see him. However, they also confirmed that anything connected with the German language and German culture was strictly forbidden at home. Their father punished them if, coming home from work, he noticed the children watching cartoons in German, forbade them from spending time with German friends in the courtyard, and, when they disobeyed, was prepared to "lay a hand on them." The children also related that their father had recently spoken very disparagingly about their mother, and had suggested that they call the Jugendamt themselves and say that they wanted to leave home and live with him.
Having examined all the circumstances of the case — including the evidence we submitted, the testimony of Jugendamt staff, and, of course, the children's own views — the court decided to leave the father's right of contact with the children in place, but, in order to protect the children from harm, subject to certain restrictions. First, he was entitled to spend time with his sons only on weekends, for no more than four hours a day. Second, a Jugendamt caseworker was required to be present at these meetings. Third, Rustem was advised to undergo a course of treatment for aggression and irritability, after completing which the question of establishing a different contact arrangement with the children could be revisited.
We sincerely hope that parents of beloved children can find a way to agree and establish a calm relationship with one another, if only to spare their children's still-fragile psyches from further harm. Our firm's lawyers, for their part, always stand ready to provide comprehensive legal support in cases such as this one, as well as in other matters involving the legal regulation of marriage and family. Since family law has long been one of our firm's core areas of practice, we are confident that we can find a dignified way forward even in what may, at first, seem like a hopeless situation.
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