Unfortunately, in today's world, cases in which a child or several children are raised outside a traditional family — where the father and mother live together in a registered marriage — occur more often than one would like. The unforgiving statistics show plainly that in almost every second marriage, spouses or partners who share children end up separating, leaving the children to live permanently with one parent. The range of life stories and difficult situations that can arise is vast. So what does the general picture look like for raising children after a divorce in Germany? Under § 1626 para. 3 of the German Civil Code (German: Bürgerliches Gesetzbuch, BGB), a child needs contact with both parents, as well as with other people close to the child whose company contributes to the child's development. Thus, in Germany, parents' and close relatives' right to contact with a child (Umgangsrecht) is enshrined in law and counts among the basic parental rights. Parents have both a duty and a right to care for their minor child. Parental care covers not only care for the child personally and for the child's property, but also representing the child's interests. Thus, under German law, even where the parents separate and their shared child lives with one of them, the other parent — like the child — retains the right to spend time together and to stay in regular contact. As a general rule, the other parent is, of course, entitled to continue taking a full part in the child's life and to make all important decisions concerning the child. In Germany, which is traditionally known for its bureaucratic, conservative approach to many administrative procedures, this is reflected, among other things, in the requirement to obtain the consent of both parents, either in the form of a joint statement they sign together or as a document each of them completes separately. Such situations — where the consent and signature of both parents (provided neither has been deprived of parental rights) are required — can arise fairly often before the child comes of age: for example, when applying for child benefit (Kindergeld) and other social payments, opening a bank account, enrolling the child in school and securing a place in an after-school program, and when resolving other crucial matters relating to the health and harmonious development of the young member of society.
Important at Divorce
Under § 1626 para. 3 of the German Civil Code (German: Bürgerliches Gesetzbuch, BGB), a child needs contact with both parents, as well as with other people close to the child whose company contributes to the child's development.
Every adult knows that it is a great blessing, both for the child and for the parents themselves, when former spouses find, after separating, the strength to maintain a calm relationship and do everything they can to keep the parents' divorce from affecting their children's future. It is far worse when the adults cannot reach an amicable agreement and instead begin to create obstacles to their former partner's peaceful life. The situation becomes still more complicated when the parents cannot agree even on such basic questions as which of them the child will live with on a permanent basis, and on what schedule the child will see the other parent. In this article, we would like to describe one case from our extensive legal practice, in which we helped a client determine her minor son's permanent place of residence and the frequency of his meetings with his father.
Our client, let's call her Margarita, divorced her husband Mark (name changed) about three years ago. During the marriage, the couple had a son — let's call him Artyom — who was only two years old at the time of the divorce. The former spouses were fortunate enough to maintain a more or less balanced relationship. They agreed that their little son would live permanently with his mother, while his father would take him every second weekend. In addition, the father would come to visit little Artyom once or twice during the weeks when the boy spent the whole week with his mother alone. This arrangement for spending time with their shared son suited Margarita and Mark reasonably well for quite a while. Problems began once the boy grew a little older and Mark expressed a wish to spend more time with him. This could be achieved through the so-called alternating-residence, or "Wechsel," model. Under this arrangement, by agreement between the parents, the children spend an equal amount of time with each of them — specifically, one full week living with the mother, the next full week living with the father.
The undeniable advantage of this arrangement is that the child gets to receive an equal share of attention from both mother and father. The child can spend time with each of them to the same degree, gaining something useful from each for the child's healthy, harmonious development. It is also a good opportunity for the parents themselves to come to terms with their new status and to take part in the day-to-day care of their child, rather than visiting the child only occasionally on weekends and creating, through their visits, an illusion of a holiday.
On the other hand, the drawbacks of this arrangement are that a young child has to keep changing the home he has just grown used to over the course of a week. In addition, parents in this situation are not always able to arrange for the child to regularly attend extracurricular activities and clubs, if the parents' homes are far apart. In a number of cases, even a child's attendance at kindergarten or school can become seriously complicated under a Wechselmodell arrangement. In three-year-old Artyom's case, such an arrangement would hardly have been workable, since the parents lived in completely different parts of the city. Margarita rented a spacious three-room apartment, while Mark lived in a three-room apartment together with his parents and younger brother. The kindergarten the boy attended, as well as the sports club and the developmental group Artyom took part in, were all located in the area where his mother lived. On top of everything else, Artyom was still quite young and largely dependent on his mother. He always welcomed his father's visits and enjoyed spending time with him on weekends, but he was most likely not yet ready to go a whole week without his mother at home. Thus, despite all the advantages of the Wechselmodell arrangement, it was best, in this situation, to hold off on applying it for the time being.
Unable to reach an agreement on the child's living arrangements with her ex-husband on her own, Margarita turned to our law firm for support, including for the possibility that she and her son's interests might need to be defended in court. Our firm's lawyer, who specializes in family-law matters, carefully studied our client's case and prepared a detailed letter addressed to her ex-husband. This letter set out, one by one, the reasons why it was better for the three-year-old to continue living on a permanent basis with our client. The letter also noted that our client would be willing to revisit the matter later, once the child reached school age and was ready for an alternating-residence arrangement between both parents. The letter, prepared by our lawyer, closed with a proposal that Mark meet with our client to once again agree on the living arrangements and on how to resolve all vitally important matters concerning their shared minor son. To our and our client's shared relief, the ex-husband, upon receiving this letter from the lawyer, agreed to a compromise, met with Margarita, and agreed on the arrangements and frequency of his meetings with their son. This time, the parents reached an agreement under which the child would continue to live with the mother on a permanent basis, would continue spending every second weekend with the father, and would spend half of all public holidays and vacation days with him each year. In addition, the father retained the right to visit the boy on weekdays, by arrangement with Margarita. All of these agreements were carefully set down in writing with the help of our firm's lawyer and then signed by the former spouses, the parents of three-year-old Artyom. Having recorded their agreements in writing, the former spouses would no longer be able simply to "change their minds" and alter their decision without sufficient grounds for doing so.
In closing, we would like to note once again that divorce is, without question, a severe trauma for a child — but it is sometimes better than continuing to live in a family where mutual understanding and respect have long since disappeared, and where the parents compete over who can shout louder or slam the door harder. The consequences of divorce for a child later in life are often less serious than the consequences of living in an inappropriately aggressive environment. Where a marriage can no longer be saved and the decision has been made to separate for good, the parents need to agree on the arrangements for their shared children's living situation and time with each of them. If they are unable to reach an amicable agreement, the final decision on the matter will fall to the court. We favor productive dialogue over litigation, and we are convinced that two adults can always reach an agreement, provided they genuinely want to. If you feel that the dialogue has reached a dead end and that it cannot be resolved without the help of a legal professional, we invite you to turn to our law firm.
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