Caught Between Two Fires: Parental Child Abduction in Germany

Love and respect are the most important sides of parenthood and of every relationship. — Jodie Foster

It's no secret that Germans quite often marry foreign women. Birth rates in mixed families are traditionally higher, and on the streets of German cities one can see plenty of endearing children with almond-shaped eyes or dark skin. Germans not infrequently take wives from Poland, Russia, and Ukraine. The fate of mixed families, of course, plays out in very different ways. As a rule, if the foreign spouse is genuinely looking for love, stability, and security, and is willing to learn new things, to adapt, and to work in a country that is new to them, their chances of family happiness are greater. Indeed, many people from the former Soviet Union find in Germany prosperity, a safe life, better social welfare, more everyday comfort, and confidence in their children's future.

Spouses of German citizens have a significant advantage when it comes to acquiring German citizenship. Provided the conditions set out in § 8 of the Citizenship Act (German: Staatsangehörigkeitsgesetz, StAG) are met, and provided there is a lawful basis for residing in the country, the right to naturalization can be obtained after as little as three years of marriage. As for children born in Germany, German citizenship by birth is acquired automatically in the cases provided for under § 4 StAG. Under that provision, a child is entitled to a German passport if: at least one of the child's parents holds German citizenship; the child is found within Germany as a foundling; or the child is born in Germany to foreign parents who have lawfully resided in the country for at least 8 years (for example, under a permanent residence permit) — in which case the child is entitled to hold two citizenships, German and that of the parents; or the child is born to foreign parents holding Swiss citizenship or the citizenship of any other EU country.

Unlike foreigners who acquire German citizenship as adults, children of immigrants born in the federal republic are permitted to hold dual citizenship. At age 21, however, the child must decide which citizenship — German or that of the parents — to keep. Young people who grew up in Germany, or who hold, in addition to German citizenship, the citizenship of an EU member state or Switzerland, are not required to make this choice.

Unfortunately, marriages — mixed ones included — often break down. So what happens, in that case, to the parents' rights to raise their shared children? As a general rule, custody (German: Sorgerecht) of the children remains with both parents even after a divorce. As a rule, parents are entitled to decide all questions relating to their children's upbringing and development on their own. The state intervenes in family relations only where there is a threat to the child's welfare. The situation can, however, take a very serious turn if, after a divorce, one parent decides to return to their home country and take the child with them without the other parent's consent. Fortunately, there are certain legal mechanisms in place to comprehensively protect parental rights in such situations.

On 1 October 2011, the Convention on the Civil Aspects of International Child Abduction — adopted in The Hague on 25 October 1980, and already joined by most of the world's countries — entered into force for the Russian Federation. Russia's accession to the Convention has, at present, been accepted by several dozen countries, Germany among them, meaning that the Convention is in force as between those countries and Russia. Thus, if, for example, a child had their habitual residence in Germany and was moved to Russia without the other parent's consent, that other parent is entitled to demand the child's return to the country of habitual residence. The parent who took the child to their home country may, of course, object. The question of how the Convention is applied is therefore relevant from two angles: that of the parent whose child was taken away, and, conversely, that of the parent who took (or is now retaining) the child. It should be borne in mind here that one must act fairly quickly, since, under the terms of the Convention, an application for the child's return to their place of habitual residence must be filed within one year of the date of the unauthorized removal. In this article, we would like to describe a case from our practice in which the question of the child's place of residence was resolved through the courts.

Our firm's client was a middle-aged German man — let's call him Alex. Alex found himself unable to continue raising his 7-year-old son Florian, who was born and raised in Germany during his marriage to his ex-wife, a Russian woman named Anna (names changed). What happened was that Anna, after the divorce, took their son on vacation to her home town in the Moscow region and, a month later, informed her ex-husband that she wanted to stay in Russia for another month; once that month, too, had passed, she made it fairly clear that returning to Germany, and continuing to live there, was no longer part of her plans. She intended to stay and build her future life in Russia. Alex, who had always taken an active part in raising Florian, categorically disagreed with his ex-wife's decision. He therefore turned to our law firm for professional legal help. Aware of the seriousness and importance of the matter, and of the heightened professional responsibility it carried, our firm's lawyers got to work without delay. After a series of failed negotiations with our client's ex-wife Anna, we came to understand that, in this case, justice would only be achieved through the courts. Our firm's lawyer, representing Alex's interests, accordingly drafted and filed a court petition concerning the abduction of a child habitually resident in Germany. Every precondition for filing such a petition was met: the boy had lived in Germany since birth and, before leaving for Russia with his mother, had attended a German school and had relatives on his father's side and friends in Germany — meaning that the center of his life's interests at that time was indeed in Germany; no court decision transferring custody of the child to one parent, let alone depriving either parent of parental rights, had been issued following the parents' divorce; and our client, while consenting to the child's temporary trip abroad with his mother, had never consented to the child's permanent relocation to Russia — despite the breakdown of the family, he wanted to continue actively taking part in raising his son. What's more, only two and a half months had passed since the child was taken abroad — meaning the one-year period within which a corresponding petition demanding the child's return can be filed had not yet expired.

Upon receiving a copy of the petition and a summons to appear before a German court, Anna took a fairly uncompromising stance and insisted she would not return their son. She explained this by saying that she could no longer imagine her future life in Germany with a child "on her hands." Since Anna had a limited command of German and was unable to find work in her field, she felt she could only find low-skilled work, the income from which would not be enough to properly support herself and the child. She also believed that, after the divorce and having moved out of her husband's home, she would be unable to find suitable housing in Germany where she and Florian could live comfortably. Finally, it unexpectedly emerged that Anna was alleging our client Alex had always treated the boy cruelly and even periodically beat him — which, she claimed, could have a negative effect on his mental health and harmonious development. The woman set out all of these arguments in her response to the petition she had received. After a series of long, difficult negotiations with his ex-wife, our client managed to persuade her to return with their son. In a phone conversation, Alex promised to provide, for their use, the house the three of them had previously shared, while he himself moved into his parents' apartment. He also promised to continue fully supporting his child and the child's mother in Germany going forward. Anna appeared to accept these terms and even signed a settlement agreement, drawn up by our firm's lawyer, under which she committed to returning to Germany with the child within the following two weeks. Unfortunately, within those two weeks the woman changed her mind, never brought the child back to Germany, and eventually stopped responding altogether. Our firm's lawyer, representing Alex's interests, was left with no choice but to conclude, regrettably, that the matter could not, after all, be resolved amicably. We therefore began actively preparing to defend our client's interests at the hearing. During the court proceedings, we presented comprehensive evidence that the center of the child's life's interests lay in Germany. Since the child was born and raised in Germany and could barely speak Russian, he would have had to start a "new life" in Russia — which could have had a negative effect on his psycho-emotional development. In addition to his oral statements, Alex, with our assistance, prepared and submitted to the court a notarized declaration confirming his intention to provide his ex-wife and son with the use of the house, along with sufficient financial support. In this declaration, he once again stressed his intention to continue actively taking part in raising his minor son. The opposing side had no evidence that Alex had ever used physical force in raising the child. Having heard the arguments and evidence of both sides, and guided by the principles of fairness, the court ruled that the child was to return to Germany in the near future.

This complex, emotionally charged case stands, in our experience, as one of the clearest examples of the timely, professional work of a highly qualified family-law lawyer. It must be acknowledged that matters relating to the legal regulation of family life — children's matters above all — demand the utmost commitment and the most responsible, objective approach from professionals. After all, such cases decide the fates of our clients and their family members. We hope that the former spouses, despite the breakdown of their family, will be able to build a respectful, cooperative relationship grounded in keeping the agreements they have reached. As the British writer Ian McEwan aptly put it: "Looking after children is the best way of looking after yourself." We hope that such problems never arise in the families of our readers. But should a problem nonetheless arise, we look forward to welcoming you at our law firm, where our lawyers will do everything possible to resolve your matter competently and swiftly.

Family Law

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