"Becoming a father is quite easy. Being a father, however, is difficult." W. Busch
Family law has been one of our firm's core practice areas for many years. When spouses cannot resolve a disputed matter on their own, they often turn to us for legal help. Our experienced lawyers provide comprehensive legal assistance with drafting marital agreements, representing clients in divorce and property-division proceedings, and resolving disputes over where minor children live and how they are raised. Our firm has successfully closed many cases in which we were able to defend our clients' interests. This article tells the story of one such family-law case from our practice.
The institution of the family enjoys special protection in Germany. In particular, parental rights are enshrined in law. They are governed by the country's Constitution — every family is specially protected by the state (Art. 6(1) of the Basic Law, German: Grundgesetz).
German law distinguishes two groups of parental rights: Sorgerecht — the right to decide essential matters (choosing the child's name, place of residence, educational institution, principles of upbringing, and so on); and Umgangsrecht — the right of parents and close relatives to contact with the child.
As a general rule, both mother and father have equal rights and duties toward their children. All questions of raising and educating the children are to be decided by the spouses by mutual agreement, taking the children's views into account and acting in their interests. If the mother or father live apart, each of them has an equal right to contact with the child, provided such contact does not harm the child's physical or mental health but instead supports the child's harmonious development. The other parent likewise has a full right to take part in raising and educating the children. The parent with whom the child lives must not obstruct this. Where the parents live apart, the child's place of residence, as well as the times of contact with the other parent, are determined by the parents themselves through mutual agreement. A child's entitlement to maintenance, where the child lives with one parent, is governed by German maintenance law.
The first priority for maintenance goes to the parent's own children (born within marriage and out of wedlock alike). The amount of child support depends on the income of the parent who lives apart from the children. Based on that net income, the amount of support is calculated as guidance under the continuously updated so-called Düsseldorf Table (Düsseldorfer Tabelle). In disputed cases, the amount is set by the court. The income of the parent with whom the child (or children) live plays no role whatsoever. It also happens that, after a divorce, a foreign mother returns to her home country with the child (or children). In that case, the amount of support paid by the father is determined taking into account the cost of living in that particular country. While minor children can always count on financial support from well-off parents or a parent, adult children may claim it during their studies (if the student cannot find suitable part-time work), as well as for roughly three months after finishing their studies if it is shown there is no prospect of paid employment (German: Nachweispflicht, the duty to provide evidence), and in cases of incapacity to work due to illness or disability.
It is fairly common for a parent living apart from the child to refuse to meet their "maintenance obligations." This article tells how we were able to help our client — let's call her Irina. When Irina first came to our law firm she was deeply discouraged and had little hope her problem could be solved. Irina had been raising her son, who was approaching his seventh birthday, entirely on her own. Not someone normally inclined to ask others for help, she had just lost her job and badly needed money. She had met the child's father, Vadim (name changed), and dated him back in her student years. Their relationship had been passionate but brief. When Vadim learned Irina was pregnant, he simply vanished without a word, unwilling at that young age to take responsibility for either the pregnant young woman or the child. Irina bore the news that she would face motherhood alone with fortitude. Gritting her teeth, she worked hard from the moment her son was born, knowing that another human life now depended entirely on her. With her parents' support she raised her son alone until he was six, never trying to appeal to his negligent father's conscience. The situation grew more acute when she lost her job and had to look for a new one. The boy was growing, money was clearly insufficient, and something had to be done. She decided to approach the child's father and ask him to help with the costs of supporting their son. The single mother knew that some time earlier Vadim had permanently relocated to Germany, where he had acquired a wife and another child. He had, of course, kept no contact with Irina whatsoever. After several unsuccessful attempts to obtain justice on her own, Irina sought professional help from our law firm. The picture that emerged was bleak: Vadim had taken no part in raising his son or in the costs of his upkeep since the boy's birth, and had even gone so far as to claim the child was not his.
Our lawyer, who specializes in family disputes, decided to try resolving the matter out of court first. He sent Vadim a formal demand regarding his failure to fulfil his duty to support his minor son, together with a request for documents proving his income. After the man, who had run from his responsibilities, once again stonewalled and claimed he had nothing to do with the child and had no income at all, we — in agreement with our client — decided to go to court.
First, the German court needed to establish whether Vadim was in fact the biological father of the child, who lived permanently in Russia with his mother. A genetic examination was ordered for this purpose. Given that the child was still young, he was permitted to give the necessary samples at the laboratory of the German Embassy in Moscow. Vadim took the corresponding tests at his place of residence in Germany. Once the results were analyzed, there was no longer any doubt about paternity — it was confirmed with 99.99% accuracy.
Second, the cornerstone of the dispute was whether Vadim's income was sufficient to pay maintenance. Here it had to be taken into account that Vadim had another son of his own growing up in Germany, and his German wife's child also lived with them. Moreover, after taxes and child support were deducted, Vadim's remaining income had to cover his own subsistence at the minimum level set in Germany. Vadim, by training earned in Russia and recognized in Germany, is an economist. He had worked at small retail companies — first at Aldi, then as a bookkeeper at Kaisers. The young man had, on the whole, neither significant work experience nor a good command of the language, and his salary was modest even by local standards. What is more, he had only managed to secure his latest position on a part-time basis. At first glance, then, it appeared that Vadim's income was not enough to meet all his obligations to support himself, his wife, and the children.
We nevertheless presented and substantiated to the court the following irrefutable arguments: with his qualifications, Vadim could have found better-paid work on the local labor market; had Vadim worked full-time in a position matching his qualifications, he would have been able to support himself and both children; Vadim had not given the court sufficient evidence that he had done everything possible to find better-paid work; the duty to support his own two children takes priority over the duty to support his wife; and Vadim had no duty to support his wife's minor child living with them, especially since that boy had his own father fulfilling his parental duties.
Relying on our arguments, the court ruled in the single mother's favor and ordered the absent father to pay maintenance to the mother of the child living in Russia, retroactively from the date of his birth up to the present, and going forward until the child reaches adulthood. Because Vadim's child lived in Russia rather than in Germany, where the cost of living differs, the payment amount was set at 199.50 euros a month. This corresponds to half of what Vadim's son would receive if his permanent residence were in Germany.
From Our Firm's Practice
The institution of the family enjoys special protection in Germany.
Our client Irina was more than pleased with the result achieved with our help. This maintenance payment will not, of course, solve every pressing problem this small family faces, but it will certainly be a real help. As the Soviet-era educator and writer V. A. Sukhomlinsky aptly observed: "Any worker — from a night watchman to a minister — can be replaced by an equally capable, or even more capable, worker. A good father, however, cannot be replaced by an equally good father." We wished our client health, strength, and patience. A challenging task lies ahead of her — raising a worthy human being who, we believe, will become a reliable pillar of support both for his mother and for his own future family.
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