In Germany, the family is a fundamental basis of society and is protected by the Basic Law. Its wording makes clear the tasks and duties of the state (protection and supervision) and of the family (care and upbringing): “Marriage and the family shall enjoy the special protection of the state. The care and upbringing of children is the natural right of parents and a duty primarily incumbent upon them. The state shall watch over them in the performance of this duty. Children may be separated from their families against the will of their parents or guardians only pursuant to a law, and only if the parents or guardians fail in their duties or the children are otherwise in danger of serious neglect” (Basic Law, Article 6).
Parental custody is therefore of particular importance in family law. Under § 1626 BGB it comprises care for the child’s person and property. Under German law, if the child is born in wedlock, both parents exercise custody. The BGB provides that direct contact with both parents and with other close relatives serves the child’s welfare. As a general principle, parents may decide independently on all questions of their children’s upbringing and development; the state intervenes in family relationships only if the child’s welfare is at risk.
Important in a divorce
Under § 1626 BGB, parental custody comprises care for the child’s person and care for the child’s property.
As a rule, joint parental custody continues after a divorce. On application, the family court can transfer custody or part of it – such as the right to determine the child’s residence – to one parent alone (§ 1671 BGB). This is not a withdrawal of parental custody; withdrawal is only possible where the child’s welfare is at risk (§ 1666 BGB). A parent with sole custody decides alone on the child’s residence, moving house, trips abroad or medical treatment. The other parent’s right of contact is not affected (§ 1684 BGB); the frequency, duration, time and place of contact are agreed by the parents or set by the court. Both parents owe maintenance: for minor children, the parent who looks after the child usually fulfils this duty through care and upbringing (§ 1606 para. 3 sentence 2 BGB), while the other pays cash maintenance based on his or her income (Düsseldorf Table). The duty to pay maintenance does not end automatically when the child comes of age: it generally continues until the completion of appropriate education or training (§ 1610 para. 2 BGB), and from the age of 18 both parents are liable in proportion to their incomes.
When a couple separates, it is often not only about dividing property but also about the children. This was the case for our client Maria, who came to us in a difficult situation. She was going through divorce proceedings with her husband Andrei and feared that he might take their six-month-old son Yegor (all names changed) away from her – but let us start at the beginning.
The young couple’s story is quite typical of our times. They met while studying economics at university and married very young. Both Andrei and Maria had good support from their parents and, thanks to their education, were already earning well. So they wasted no time in carrying out the basic life “plan”: they found a home – a new three-room flat in an expensive neighbourhood – planted a tree in the garden and had a healthy, cheerful son, Yegor. As so often happens, everyday life took its toll. After the birth of their son, tired of the daily routine, Andrei was at home less and less, came back in the early hours a little “merry”, often insulted and humiliated Maria and, in anger, could even go so far as to push her while she was holding the baby. Maria, who had barely recovered from a very difficult birth and spent day and night caring for her son, was struggling desperately to keep breastfeeding. Not everything went smoothly: the boy had colic, then an allergy, then painful teething. The doctors all advised the young mother to breastfeed Yegor for as long as possible. Her husband’s inconsiderate behaviour clearly did nothing for the physical and mental health of the young mother and the growing child. When the situation became even worse and Andrei’s behaviour became the new everyday reality, Maria finally made a firm decision. She packed her belongings and, of course, her beloved child and moved in with her mother – into a small two-room flat that her mother rented together with two friends, for want of a better alternative.
The father soon made himself heard. Whether he really missed his only child or wanted to get back at the wife who had left without warning, Andrei instructed a lawyer and took decisive action. His first step was a complaint to the local youth welfare office (Jugendamt) claiming that his child had been abducted. Maria realised that the situation was serious and turned to our firm for legal help.
Our firm’s lawyer examined the documents and filed the following applications with the family court: · transfer of sole parental custody to Maria (§ 1671 para. 1 BGB), based also on the argument that the father’s conduct endangered the child’s welfare (§ 1666 BGB); · in the alternative, transfer of at least the right to determine the child’s residence to the mother; · allocation of the former marital home to Maria for her sole use (§ 1361b BGB).
The response from Andrei’s lawyer was fairly predictable. He submitted that: · the child should live half the time with the father and half the time with the mother; · the jointly rented flat should remain with Andrei, as the child would spend half the time there and Maria could not afford the flat on her own.
To clarify the circumstances, analyse the family situation and the relationships between the parents and the child, and later submit reports to the court on whether sole custody could be transferred to the mother, the Jugendamt and a specially appointed person representing the child’s interests (Verfahrensbeistand) also took part in the proceedings.
The family court deals with child-related matters as a priority and expeditiously; a first hearing should take place no later than one month after the proceedings begin (§ 155 FamFG). The Jugendamt is heard and can take part in the proceedings (§ 162 FamFG); a guardian ad litem (Verfahrensbeistand) can be appointed for the child (§ 158 FamFG), and the court can obtain an expert psychological opinion (§ 163 FamFG). The Jugendamt and the Verfahrensbeistand usually talk to both parents beforehand and get a picture of the living conditions.
In our case, the Jugendamt representatives and the psychologist concluded that the child should live with the mother, while the father should be entitled to see his son twice a week from 9 a.m. to 7 p.m. Everything to do with family relationships, and children in particular, is highly individual. A contact arrangement that might suit another separated family perfectly therefore proved unsuitable for our client and Yegor.
First, on medical advice Maria was still breastfeeding, so mother and child had to be together every three to four hours.
Second, after Maria’s move the separated spouses lived in different parts of the city, and it was not possible to drive the six-month-old boy back and forth during the day.
Third, the contact schedule recommended by the Jugendamt did not fit Yegor’s daily routine: he woke up at around ten every morning and attended a special baby swimming course with his mother from 6 to 7 p.m.
Finally, it was above all in the child’s interest to be able to live with Maria in the flat previously rented together. The young woman’s mother did not have enough space to accommodate her daughter and grandson comfortably, and urgently finding a new rented flat in any large German city is a practically impossible task for a young breastfeeding mother. Whether Maria could afford the rent alone was her own decision. Moreover, the young man could easily move into his parents’ four-room flat.
Our lawyer presented all these arguments in the pre-trial correspondence with Andrei’s lawyer and at the hearing. The court transferred sole parental custody to Maria; the boy lives permanently with his mother. No withdrawal of custody under § 1666 BGB was ordered. The father’s contact was set at once a week from 10 a.m. to 5 p.m. The allocation of the flat has not yet been decided; we continue to represent Maria in these proceedings.
We are sorry when children are caught between their parents. We hope that the parents will work together in their son’s interest in future. We will be glad to advise you on custody, contact and maintenance after a separation.
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