In Germany, as in many other countries, parents’ rights are enshrined and protected by law. Here they are guaranteed by the constitution – every family enjoys the special protection of the state (Art. 6 para. 1 of the Basic Law, GG). Parents therefore have two fundamental rights laid down by law:
— parental custody (Sorgerecht) – the right to decide on essential matters (name, place of residence, school, principles of upbringing, etc.);
— the right of contact (Umgangsrecht) – the right of parents and close relatives to spend time with the child.
Parental custody carries particular weight in family law. Under § 1626 BGB it comprises care for the child’s person and for the child’s property – including decisions on name, residence, school and upbringing. If the parents are married to each other when the child is born, they hold custody jointly. If they are not married, the mother initially has sole custody (§ 1626a para. 3 BGB). Joint custody then arises through matching declarations of custody recorded by the youth welfare office (Jugendamt) or a notary (§§ 1626a para. 1 no. 1, 1626d BGB), through marriage, or by decision of the family court: if the mother does not agree, the father can apply for custody to be transferred to both parents jointly (§ 1626a para. 2 BGB).
Important in a divorce
Under § 1626 BGB, parental custody comprises both care for the child’s person and care for the child’s property, as well as the right to decide on essential matters such as name, residence, school, principles of upbringing and other matters directly concerning the child.
Father and mother have the same rights and duties towards their children. They must settle important questions of upbringing and education by mutual agreement, taking the children’s views into account according to their age (§ 1626 para. 2, § 1627 BGB).
What happens to parental rights if the parents live apart for whatever reason?
By and large, nothing changes: even after a separation, both parents generally keep their rights and duties towards their minor children. A parent can apply to the family court for sole custody or part of it to be transferred to him or her (§ 1671 BGB). Interventions against the parents’ will are only possible under strict conditions: if the child’s physical, mental or emotional well-being or property is endangered and the parents are unwilling or unable to avert the danger, the family court takes the necessary measures – up to the partial or complete withdrawal of custody (§§ 1666, 1666a BGB). Only the family court can decide this; the Jugendamt is involved in the proceedings.
There are as many life situations as there are families, and there are no ready-made solutions to the problems that arise. In every case we look for an individual solution that serves, above all, the welfare of the minor children. This was also the case when a young man named Sergei (name changed) came to us needing help to protect his rights as a father.
His story was fairly ordinary. He had met his wife Alla (name changed) while still at university. They were deeply in love, and it seemed that no adversity could stand in the way of their happiness. After about two years they married and set up a cosy home in their home town of Klaipėda. In the first years of their marriage there was harmony and love. They understood each other without words, shared interests, travelled often and had two wonderful children. Unfortunately, the happiness did not last: the reason for Alla’s growing dissatisfaction, especially after the children were born, was her husband’s frequent and long absences. Sergei was a merchant seaman. It weighed on him too that he spent little time with the children, and he increasingly considered changing jobs, but his wife had already decided otherwise. During one of her husband’s long absences she met a German citizen named Stefan (name changed) online. Events moved quickly: she filed for divorce and told her husband that she intended to move to Germany with the children in the near future. This hit our client like a bolt from the blue. Calmly and in view of the demands of his job, he accepted that the children would stay with their mother. It did not even occur to him that his rights to bring them up and care for them could be restricted in any way.
The first two years after the divorce were relatively calm – the former spouses mostly managed to agree on the key questions concerning the children’s lives and development. Problems began when it was time for the children to start school. On several occasions Alla needed applications signed by both parents, while her former husband was at sea and could not be reached for about a week. Sergei of course signed the documents as soon as he returned, but another delayed response prompted Alla to take decisive action.
Without informing Sergei beforehand, Alla wrote to the Jugendamt demanding that his parental rights be withdrawn. Her reasoning was that her former husband did not take part in important decisions in good time and was thus hindering the children’s development. However, only the family court can withdraw or transfer custody (§§ 1666, 1671 BGB); the Jugendamt examines the situation and gives an opinion in court proceedings (§ 162 FamFG, § 50 SGB VIII). Sergei was determined to prevent any restriction of his rights and instructed us. Our lawyer compiled documents showing that withdrawing or restricting his custody would not serve the children’s welfare. The main arguments were:
— despite his particular profession, which involves long periods away from home, he had always tried to spend all his free time with the children; even after his former family moved to another country, he visited about every three months and also had the children to stay with him;
— Sergei had paid child maintenance regularly and additionally transferred money for necessary larger purchases;
— our client had always used his time with the children meaningfully; thanks to him, for example, they had learned to swim early and discovered a love of reading, especially adventure stories;
— the children naturally wanted to see their father regularly; depriving them of this could have had a very negative effect on their emotional state.
The lawyer sent these arguments and the supporting evidence to the Jugendamt as a statement. The Jugendamt then saw no reason to initiate court proceedings; Sergei’s parental custody remained unchanged. We advised our client to continue to seek agreement with his former wife on important questions of the children’s upbringing. We will be glad to advise you on legal questions concerning separation, custody and contact.
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