Bringing up children is a difficult task. In Germany, the state takes the protection of children’s rights very seriously: children have a right to an upbringing free from violence; physical punishment, emotional harm and other degrading measures are not permitted (§ 1631 para. 2 BGB).
Under Art. 6 para. 1 of the Basic Law (GG), marriage and the family enjoy the special protection of the state. The term “family” covers in particular the relationship between parents and children. Article 6 GG is at the same time an institutional guarantee, a fundamental right and a value-setting principle; the state must protect and support marriage and the family.
Under § 1626 para. 3 BGB, a child needs contact with both parents and with other people close to it whose contact benefits its development. In Germany, the right of parents and close relatives to contact with the child (Umgangsrecht) is therefore laid down by law and is one of the fundamental rights in family law.
Important: custody and contact
Under § 1626 para. 3 BGB, the child needs contact with both parents and with other people close to it whose contact benefits its development.
Many people remember their grandparents fondly; grandparents are often actively involved in bringing up their grandchildren – at weekends, in the holidays or in everyday life. In other families, the grandparents are less involved and lead their own lives. Both are perfectly normal; how close contact is, each family decides for itself.
Where grandparents see looking after a small child as their duty and responsibility, this has advantages: the parents can devote more time to work and careers, keep up their hobbies and simply spend more time together, knowing that their children are in the reliable and loving hands of the people who once raised them. On the other hand, life moves on, approaches to upbringing change, and the views of parents and grandparents may differ fundamentally. Some families manage to find a compromise; in others, serious conflicts arise with the children at the centre. The children then experience a clash of core values between people they love and are the first to suffer from the family’s problems, which can be very harmful to their mental health and development.
Exactly this happened in a young family who turned to our firm in a desperate situation. Tatyana and Andrei (names changed) were bringing up their children and often relied on the grandparents’ help. For a while everything was fine, until disputes about upbringing arose between the older generation and the children’s parents and gradually grew into serious family conflict. Both sides undoubtedly wanted the best for the children, but the inability to find flexible solutions, insistence on their own positions – even in front of the children – and unwillingness to respect each other’s opinions played a fateful role. The children, torn between people they loved and suffering because the grandparents constantly forbade what the parents allowed and vice versa, had to make a difficult choice themselves. In the end, they simply stopped visiting their grandparents and keeping in touch with them.
The grandparents, worried about their grandchildren and missing them, believed that the situation was solely due to pressure from Tatyana and Andrei. They therefore decided to enforce their grandchildren’s rights through official channels.
First, they complained to the youth welfare office (Jugendamt), asking it to look into the family situation and take action against parents they considered negligent.
Second – much to our clients’ surprise – the grandparents applied to the family court for a contact order. They relied on § 1685 para. 1 BGB: grandparents have a right of contact with the child if this serves the child’s welfare.
The young parents, completely unprepared for this and above all worried about how the outcome of the proceedings might affect their long-established family life and the children’s psychological development, turned to our firm for help.
In such cases, the decisive factor for the court is to establish and protect the interests of the minor children. Not the ambitions and wishes of the adults, but the rights and interests of the children were to guide the judge to the right decision. At our request, the court appointed an expert in child psychology to analyse the situation; the expert spent a long time with the children, observed and analysed their behaviour and concluded that the children indeed did not want regular contact or time together with their grandparents.
To protect the interests of our clients and their minor children, we therefore put forward the following key arguments at the hearing:
· the duty to bring up the children and the responsibility for them lie primarily with the parents. It is therefore the parents whose ideas, approach to upbringing and values are decisive for their children’s upbringing;
· the adults had been unable to find a compromise or resolve the conflict peacefully, which led to constant quarrels and even confrontations in the family and had a negative effect on the children’s still developing psyche;
· under German law, children have a right to contact with people close to them whose contact benefits their development, including grandparents. However, grandparents’ right of contact exists only insofar as contact serves the child’s welfare (§ 1685 para. 1 BGB). The children’s wishes – depending on their age and maturity – are an important criterion.
The judge heard both sides and put the rights and interests of the children first. Relying on the expert opinion, she rejected the grandparents’ application: according to the findings, contact against the children’s clearly expressed wishes did not serve their welfare. The decision was also sent to the Jugendamt; the grandparents were informed that the review had found no risk to the children.
We were thus able to protect the legal interests of our clients and their children. On a human level, we hope that the family will soon find its way back together and that the children, once they feel calm again in the adults’ relationships, will seek contact with their grandparents of their own accord.
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