It is quite common for a mother to separate from her child’s father, remarry and restrict the biological father’s contact with the child. Under § 1626 para. 3 BGB, however, the child’s welfare generally includes contact with both parents and with other people close to the child if this contact benefits its development. Each parent must refrain from anything that impairs the child’s relationship with the other parent (§ 1684 para. 2 BGB). If a parent does not comply with a court contact order, the court can impose coercive measures – an administrative fine (Ordnungsgeld) or coercive detention (Ordnungshaft) (§ 89 FamFG). The right of contact is thus one of the fundamental rights of both child and parents.
Important: custody and contact
Under § 1626 para. 3 BGB, contact with both parents and with other people close to the child generally serves the child’s welfare if it benefits its development.
Alexandra (name changed), the protagonist of our story, met a young man named Christian while she was still at university. A romantic courtship followed, and soon they were a couple. Their relationship developed very quickly; they got engaged and began preparing for the wedding. But life does not always go to plan. Christian had always been very sociable and liked spending time with friends, and lately these meetings had become particularly frequent. This upset Alexandra, as the wedding day was approaching and she alone was doing all the preparations while Christian continued to party with his friends.
To make matters worse, Christian increasingly came home in a strange state that did not look like ordinary drunkenness. Alexandra realised what was going on when she caught him taking drugs in the bathroom. For her, this was completely unacceptable. Christian had changed a great deal and had become irritable and aggressive. Overwhelmed by the responsibility and seized by panic, the young woman felt disappointed, and over time doubts about her decision grew. Arguments and quarrels began. Within a few weeks the wedding was off, and a week later Alexandra announced that she was leaving him.
After the separation Alexandra found out that she was pregnant, but her decision was firm: she had left for good and did not intend to go back to Christian. He, for his part, made no attempt at reconciliation and only learned of the child – a girl – after the birth. For the first two years he even visited her and became very attached to the child. Soon, however, Alexandra found a new partner – let us call him Valentino – and that was when the problems started. Christian was very jealous where his child was concerned; the idea that another man would help raise his little daughter infuriated him. When Alexandra and Valentino married, he finally lost patience and decided to apply to the family court for joint parental custody.
Parental custody carries particular weight in family law. Under § 1626 BGB it comprises care for the child’s person and 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.
If the parents are married to each other when the child is born, they hold parental custody jointly. Otherwise, the mother initially has sole custody (§ 1626a para. 3 BGB). Joint custody arises through matching declarations of custody recorded by the youth welfare office (Jugendamt) or a notary, 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; the court grants this if it does not conflict with the child’s welfare (§ 1626a para. 2 BGB). That is exactly what Christian did, and the court transferred parental custody to both parents jointly.
Alexandra had not been represented by a lawyer in those proceedings and, as it later turned out, did not attend the second hearing. If the mother does not put forward any reasons against joint custody and none are otherwise apparent, the law presumes that joint custody does not conflict with the child’s welfare (§ 1626a para. 2 sentence 2 BGB).
Once he had the court decision, Christian felt he could come to Alexandra’s home whenever he liked. Each time he behaved very provocatively and insolently towards her husband Valentino. There were arguments, quarrels and even scuffles. The situation escalated, and the child often witnessed these terrible scenes, which naturally affected how she saw and related to her biological father. The girl did not really understand that Christian was her father – she called him by his first name – and over time she lost any wish to see him. At some point Alexandra therefore began to reduce contact between the father and the child, above all to protect the child’s emotional well-being and to make her own life easier. Christian, who had insisted on meetings and rightly asked his former girlfriend for information about the child’s life, did not accept this and again applied to the family court for his contact with the child to be regulated.
The situation was further complicated by the fact that Alexandra had by then moved to Italy with her husband and the child. Valentino was Italian, born in Italy, where he had spent his whole life. He had only come to Germany because his employer had posted him there for a fixed period. He had to return, and Alexandra naturally followed him with the girl.
Alexandra turned to our firm. Our lawyer first pointed out that, for the move to Italy with the child, she would have needed the consent of the father, who shared custody, or a court decision; a move without consent can constitute wrongful removal under the Hague Child Abduction Convention (HKÜ), on the basis of which the father can demand the child’s return. However, the only subject of the forthcoming hearing was the regulation of Christian’s contact with the child.
After the clients had described all their experiences with Christian and the scenes he made at meetings, it became clear to the lawyer what the hearing had to focus on. According to the client, as they were leaving the court building after the first hearing in the custody proceedings, Christian had violently knocked her document folder out of her hands and insulted her openly in public. Alexandra also reported the young man’s drug problems, which could likewise be relevant in this case.
On the day of the hearing, Christian was very agitated from the outset. When he saw Alexandra’s husband in the corridor, he became so enraged that the child and the husband had to wait in a separate room.
Christian was unable to remain calm during the hearing either. He raised his voice, threw papers around the room and even verbally attacked his own lawyer; the judge had to call him to order several times. He repeatedly left the courtroom demonstratively and came back after a few minutes. The hearing therefore lasted almost two hours.
On behalf of the client, the lawyer presented the occasions during their time together when Alexandra had seen Christian taking drugs, and suggested that Christian provide a drug test. Contact can be restricted or excluded to the extent necessary for the child’s welfare; excluding it for a longer period requires that the child’s welfare would otherwise be endangered (§ 1684 para. 4 BGB). A mere suspicion is not enough – it must be supported by specific facts. Supervised contact is often ordered as a less drastic measure.
The court took the concerns of the mother and stepfather seriously and made the regulation of contact conditional on Christian providing a negative drug test. If he submitted it in time, he was not to be refused contact with his daughter. The court regarded his behaviour at the hearing as an expression of the conflict with the mother and her husband rather than as a danger to the child herself.
In the event that Christian provided the test results, the court also required Alexandra to keep up German with the child, as the girl risked forgetting it in Italy, which could later make communication with her biological father impossible. She was also to maintain telephone contact between child and father on certain days of the week and not obstruct meetings during the girl’s school holidays. All this was to take place with clear guidance and the support of the Jugendamt, which was to accompany the meetings. Christian was furious when he heard the decision – even though supervised meetings are common practice in such cases. Where a child does not live with one parent, such accompanied meetings are often held first to see how the child reacts.
After the hearing, however, it turned out that the Jugendamt was unable to provide anyone to accompany the meetings because of its workload and staff shortages. Only a month later did it report that it had found someone. Because a preliminary conversation with the parents was required first, it wrote to Christian, who had not responded so far. This conversation is an essential prerequisite, as the Jugendamt can only support the meetings afterwards.
At the lawyer’s request, the court stated that Christian had so far not submitted any test results. The lawyer advised the clients to tell the Jugendamt that they were willing to attend the preparatory conversation – cooperating in the contact arrangements is in the child’s interest and is taken into account by the court in later decisions.
The right of contact is an independent right of the child and of each parent. It can only be restricted or excluded to the extent necessary for the child’s welfare (§ 1684 para. 4 BGB). Even a parent without custody keeps the right of contact and can have it regulated by the court. That is exactly what Christian intended to do.
Christian is currently no longer in touch. How he will act in future remains to be seen. Our client has instructed us to examine whether the custody decision can be amended and, if so, to apply for this (§§ 1671, 1696 BGB). The case shows how important it is to obtain advice and representation already in the first custody proceedings: anyone who does not put forward reasons against joint custody there can later have it changed only under stricter conditions.
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