A separation often leads to tension between the parents, and the child can easily end up caught in the middle. If the child lives with one parent after the separation, joint parental custody (elterliche Sorge) usually continues. In matters of considerable importance, the parents must therefore still decide together (§ 1687 para. 1 sentence 1 BGB); matters of daily life – food, clothing, leisure, extra lessons and the like – are decided alone by the parent with whom the child lives (§ 1687 para. 1 sentences 2 and 3 BGB). Moving abroad is always a matter of considerable importance; for holiday trips, the destination, duration and circumstances are decisive. If the parents cannot agree, either parent can apply to the family court to be given the decision on this question (§ 1628 BGB) or to be granted the right to determine the child’s residence (Aufenthaltsbestimmungsrecht) or sole custody (§ 1671 BGB). A parent who holds the right to determine residence alone no longer needs the other parent’s consent to decide where the child lives.
A permanent move of the child abroad therefore requires the consent of the other parent with custody or a court decision. The law does not prescribe any particular form; for evidential reasons, a written declaration is advisable. If a child is taken abroad or kept there without this consent, this may constitute wrongful removal within the meaning of the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (HKÜ) – with the result that the parent left behind can, as a rule, demand the child’s return (Art. 3, 12 of the Convention). Russia is also a party to the Convention. Custody decisions generally remain within the jurisdiction of the courts of the state where the child was previously habitually resident (Art. 7 of the 1996 Hague Child Protection Convention, KSÜ). There are no ready-made solutions in such cases; parents, lawyers and courts must be guided by the child’s best interests. In this article, we report on one such case from our practice.
A young mother of a two-year-old boy – let us call her Maria – came to us for legal help in a very low state of mind. Her story was a sad one. About five years earlier, while still living in Russia, she had met a young man online – let us call him Eduard – who had been born in provincial Russia and had lived in Germany since childhood. After a short exchange of messages, they arranged to meet. Eduard invited Maria to stay with him for a two-week holiday, after which she decided to “stay a little longer” and, once all the documents for a “fiancée visa” had been obtained, moved in with him. At first things went quite well. Maria spoke good English, so everyday communication was no problem. After only about two weeks she started an integration course for newcomers and found a job as a receptionist in a small beauty salon. Without much hesitation the young couple married and soon decided to have a child. To their joy, the baby was born strong and healthy, although of course it needed a great deal of care and attention in its first year. Maria quickly settled into her new role as a mother and tried to meet all her new duties properly and cheerfully. Unfortunately, the same could not be said of the new father. He found many reasons to spend as little time at home as possible, often slept in another room on the grounds that he needed proper rest before work, and mostly left his wife alone with the baby and all the problems of its first months. Arguments between the spouses became more and more frequent.
Time passed, but Eduard simply did not get used to the new family member who had upset his routine, and his constantly tired and exhausted wife no longer interested him. After a period of “cold war” punctuated by short, loud quarrels, they made what was probably the right decision: to live apart for a while. Without giving much thought to what would happen next, the young woman packed her things, took the child and moved in with a friend, who kindly agreed to rent her a room in her three-room flat for a few months. Maria tried to manage on her own for a while, but her salary as a receptionist, the child benefit and the three hundred euros a month from her husband were clearly not enough to rent a reasonable flat and support herself and her son. In Germany, Maria could rely on no one but herself. Back home in Russia, her parents, sister and brother kept asking her to come home with the child. After a day or two of thinking it over, our future client did exactly that: she bought plane tickets for herself and her son and flew to her parents, sending Eduard a message that she was going to Russia with the child on holiday for a few months. Eduard took the news calmly, as he had rarely visited them anyway, but when it became clear that his wife did not intend to return to Germany, he “raised the alarm”.
Perhaps hurt that he had not been involved in the decision, or because he realised that he would hardly see his child any more, Eduard instructed a lawyer. After Maria received a letter in Russia demanding that the child be returned to Germany, she turned to our firm. Our lawyer examined the circumstances and first pointed out to the client that she should not have taken the child abroad permanently without the consent of the father, who shared custody, and that the father could, as a rule, demand the child’s return under the Hague Convention. In the court proceedings on Eduard’s application regarding the child’s residence, the question was therefore what would best serve the boy’s welfare. The lawyer set out the specific living conditions and provided evidence: in Russia, mother and child had enough space in the grandparents’ house; Maria had been promised a three-quarter-time job as a sales assistant in a cosmetics shop; the grandparents helped with childcare; a nearby kindergarten was ready to take the boy, and he had already formed close bonds with his cousins. At the same time, the client did not apply for the father’s custody to be withdrawn; he was to keep contact with his son and a say in important decisions. The court concluded that the child living with his mother best served his welfare. The father retained his right of contact. Maria also instructed us to represent her in the divorce proceedings, which are not yet concluded.
From our practice
A permanent move of a child abroad requires the consent of the other parent with custody or a court decision (§§ 1628, 1671 BGB). Without it, return proceedings under the Hague Convention may follow.
We wish our client and her son some peace, and both parents the ability to talk to each other in the child’s interest. The case also shows that anyone planning to move abroad with a child should take legal advice beforehand – then consent or a court decision can be obtained in good time and return proceedings avoided.
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