Family life is a particularly complex area of human relationships, governed in most cases by moral norms and by rules set within each family. Because the interests, development and well-being of families matter greatly for society, the state has also laid down generally binding rules for family relationships. Family law tries, carefully and without unnecessary interference in family life, to create legal mechanisms that secure the rights and duties of parents, children, spouses and other family members towards each other.
Our client Yevgenia (name changed) also had to rely on legal rules to settle her family affairs. She had come to Germany from Russia about five years earlier to study at a German university. During her studies she entered into a serious relationship with Vitaly (name changed), likewise Russian-born, who had come to Germany many years earlier with his parents as ethnic German resettlers. Vitaly, considerably older than Yevgenia, suggested almost immediately that she move in with him, but the couple did not plan to marry. Some time later their daughter Evelina (name changed) was born.
Vitaly acknowledged paternity but did not apply for joint custody, so our client alone held parental custody of Evelina.
After a few years of living together, the relationship gradually deteriorated; there were persistent reasons for quarrels and even mutual insults. Vitaly increasingly came home heavily drunk, behaved aggressively and blamed Yevgenia for all their problems.
Our client put up with such scenes for a long time, hoping it was only a temporary crisis, but the situation only got worse, so Yevgenia decided to leave her partner and move into another flat with her daughter. Vitaly naturally disapproved strongly of this decision, and a fierce quarrel broke out in the course of which he pushed our client in anger.
After these events our frightened and hurt client refused Vitaly’s demands to meet their four-year-old daughter for a long time, fearing that he might be drunk again and harm her. After a few months, however, both calmed down somewhat and were able to communicate more constructively, and they even tried to resume the relationship – but after a few months concluded that it had run its course and separated for good.
This time our client allowed Vitaly to take their daughter at weekends, as the girl was very attached to her father. After a while, however, Yevgenia learned from her daughter that Evelina spent most of the time not with her father but with her grandparents, who looked after her because her father had gone out somewhere. This began to worry Yevgenia; she feared that Vitaly might drink heavily while he had their daughter, but she decided to give him a chance.
For the holidays, Vitaly asked our client to allow Evelina to go abroad on holiday with him. In the past the whole family had gone to the seaside every year, and Evelina had been looking forward to it. Yevgenia assessed the situation, however, and decided that she could not entrust the child to Vitaly. He then suggested that they go on holiday together, as he very much wanted to give his daughter a treat. After much persuasion Yevgenia agreed, and the whole family stayed at a seaside hotel.
Vitaly spent the first two days with his daughter, showing her the rides and playing games with her. By the third day, however, his enthusiasm had faded; he stayed away for long periods and came back drunk. The more he drank, the more roughly he treated Yevgenia. On one of the days he even attempted to rape his former partner while Evelina was in the next room. Our client then wanted to go home immediately, but the following day Vitaly suffered a heart attack, and she had to call a doctor urgently and give him first aid.
After returning home, Yevgenia reported the attempted rape to the police. In addition, Vitaly was prohibited from coming within 250 metres of our client – such a prohibition is ordered by the court under the Protection Against Violence Act (§ 1 GewSchG).
A few weeks later Yevgenia learned that Vitaly’s lawyer had applied to the family court for contact with Evelina to be regulated. To protect her daughter’s interests, Yevgenia then turned to our firm.
Our lawyer listened carefully to Yevgenia’s story, examined the other side’s application and explained: under § 1684 para. 1 BGB, the child has a right to contact with each parent, and each parent is entitled and obliged to have contact – this also applies to a father without custody. Vitaly could therefore in principle demand contact with Evelina. He applied for extensive regular contact, with his daughter staying overnight with him from Friday evening to Saturday evening, as well as joint holidays – one week in winter and two weeks in summer.
Important: custody and contact
Under § 1684 BGB, the child has a right to contact with each parent, and each parent is entitled and obliged to have contact with the child.
The lawyer explained that the child’s welfare comes first when contact is regulated. The family court can restrict contact or order that it take place only in the presence of a cooperating third party if this is necessary for the child’s welfare (§ 1684 para. 4 BGB). Where there is a well-founded suspicion of alcohol misuse, contact might, for example, initially be limited to a few hours a week.
As Yevgenia did not want to meet her former partner in person, she also asked for the handover of the child to take place via Vitaly’s parents, who lived next door to our client.
After discussing all the necessary details with the client, our lawyer sent the court a formal letter setting out Yevgenia’s legal position. It explained the relationship between our client and the child’s father in detail and stated that our client was willing to allow Vitaly contact with the child, but that all meetings had to take place in the presence of third parties, as Yevgenia had well-founded concerns that the father continued to misuse alcohol.
The events of the joint holiday were cited as evidence. The lawyer pointed out in particular that Vitaly had originally wanted to travel alone with Evelina – and that he had suffered a heart attack during the holiday, when the mother had to give him first aid.
Moreover, Vitaly had never looked after his daughter on his own, as either her mother or her grandparents had always been nearby. He could therefore not demand that Evelina be placed in his care for longer periods.
The lawyer also stressed Vitaly’s tendency towards outbursts of aggression, which was documented by the files of the criminal proceedings opened following Yevgenia’s report of attempted rape.
On the basis of these facts, the lawyer proposed limiting the father’s contact with his daughter to three two-hour meetings a week, with the child also supervised by Vitaly’s parents.
Two weeks after this letter was sent to the court, our firm received a letter from Vitaly’s representative claiming that the facts set out by Yevgenia were untrue and that our client’s refusal to allow longer meetings was solely due to Vitaly having a new girlfriend – in other words, that Yevgenia was acting out of jealousy.
Our lawyer then provided further explanations and again pointed out that Yevgenia was acting solely in her daughter’s interest, as she could not be sure that Vitaly would look after Evelina adequately.
Before the court hearing, however, Vitaly’s representative contacted our lawyer and proposed an amicable settlement and a contact schedule that would best serve the child’s interests. The parties therefore agreed that Vitaly could see the child three times a week, picking Evelina up from nursery on Fridays and returning her to Yevgenia on Saturday afternoons via his parents, who lived near our client. Longer holidays together were ruled out, but Yevgenia agreed to reconsider the schedule if Vitaly proved to be a responsible and caring father.
The contact agreement was submitted to the family court. The court found that it served the child’s welfare and approved it as a court-approved settlement (§ 156 para. 2 FamFG). A review of the arrangement was provided for after six months.
The example shows that even in very strained family situations an agreed contact arrangement can be reached that gives the child contact with both parents while taking account of its safety.
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