Can the Wechselmodell Be Reversed? Changing a Child's Residence Arrangement

"Children cannot be frightened into obedience by severity — what they cannot bear is only falsehood." — Leo Tolstoy

In Germany, as in many other democratic countries, great importance is attached to protecting the rights and lawful interests of minor children. The people closest to a child are, without question, the child's parents, whose rights and duties toward their children are governed by law. Under § 1626 of the German Civil Code (German: Bürgerliches Gesetzbuch — BGB), parental custody comprises care for the child's person, for the child's property, and the right to decide such vital matters as the choice of the child's name, place of residence, and educational institution, as well as the principles of upbringing and other matters directly concerning the child. Under § 1626(3) BGB, a child also needs regular contact with both parents, as well as with other close relatives whose involvement contributes to the child's harmonious development.

In Germany, then, the right of parents and close relatives to contact with a child (German: Umgangsrecht) is enshrined in law and counts among the core parental rights. Accordingly, where one parent actively obstructs the other parent's or a close relative's meetings with the child, or flatly refuses to allow such meetings, that parent is thereby breaching their parental duties. In Germany, this can lead to administrative sanctions. A court may order such a parent not only to make the meetings between the child and the other parent possible, but also to pay a corresponding fine. As our readers know, every family's situation when it comes to raising children is highly individual, and what works well in one case is not necessarily the optimal solution in another.

As is well known, parents retain their rights and duties toward their minor children even where the family breaks up for whatever reason. Where parents have decided to divorce, finding a compromise on how to continue raising their shared child together is one of the most important items on the agenda. In particular, separating parents must decide which of them the child will live with on a permanent basis, and what arrangement for contact with the other parent will be put in place. Unlike in many post-Soviet countries — Russia, Ukraine, or Kazakhstan, for example — it is not at all unusual in Germany for a child, after a divorce, to continue living permanently with the father and spend weekends and holidays with the mother. Some parents also decide that the child will live with each of them in alternation — one week with one parent, the next week with the other — under the so-called "alternating model" (German: „Wechselmodell"). Whatever residence and contact arrangement the adults settle on, it must not infringe the child's lawful interests or have a negative effect on the child's development. So if, for whatever reason, the arrangement starts causing the child problems and difficulties, the parents need to sit back down at the negotiating table and adjust the child's residence and contact arrangement to reflect the changed circumstances. Unfortunately, not every pair of adults has the good sense to find the optimal solution and build a comfortable relationship between themselves and their children. In this article, we describe one such case from our varied practice of successfully resolving family-law matters.

A young woman came to our law firm — let's call her Valentina — whose problem centered on securing the permanent residence of her 5-year-old daughter with her. Valentina had divorced her husband — let's call him Stanislav — about a year earlier. After the divorce, the couple initially agreed that their shared daughter Anastasia (name changed) would live in alternation, one week with her mother, the next week with her father, under a Wechselmodell arrangement. The girl thus lived first in one parent's apartment, then the other's, for roughly a year. After some time, however, Valentina increasingly began to suspect that this alternating arrangement was not good for the child.

First, the child was still quite young, and at that age the girl needed her mother's care and attention more. Although the girl was happy to spend time with her father, she remained more strongly attached to Valentina. In practice, this showed up in the fact that during the weeks she lived with her father, her appetite worsened, her usual daily routine was disrupted, and Anastasia would often wake up at night, call for her mother, then struggle to fall back asleep and feel unwell in the mornings. Even the staff at her kindergarten noted that, while staying with her father, Anastasia was often listless, less active and attentive, and barely engaged with the caregivers or other children.

Second, the problem was that the school and extracurricular activities the girl regularly attended were located close to Valentina's apartment. As a result, Stanislav had to leave home with his daughter very early in the morning and drive her across town. This was, naturally, inconvenient for both father and child.

In addition, Valentina knew that Stanislav had recently changed jobs and taken on a new, demanding position. The job took up a great deal of his time and energy, and he found it very difficult to keep up with his new work responsibilities while also regularly caring for the child properly. He therefore frequently relied on hired help — nannies and household assistants. This was an additional source of stress for a small child who had not yet fully adjusted to her new circumstances. One complete stranger would be replaced by another in fairly quick succession — some kindly disposed toward the girl, others less so. None of this contributed to Anastasia's sense of calm or comfort.

After observing her daughter for a while, Valentina concluded that this residence arrangement was not right for Anastasia's situation. She decided to try talking to her ex-husband herself about changing the girl's living arrangement. She wanted to agree that the girl would live with her permanently, while the father would spend every second weekend and half of the public holidays with his daughter. Valentina, however, was flatly refused. Stanislav, without even listening carefully to her arguments, declared that he had no intention of changing the existing residence arrangement at all. Perhaps he genuinely wanted to spend more time with his daughter, or perhaps, driven by past grievances, he simply did not want to engage with his ex-wife or look for compromises on any issue. Realizing that the problem was unlikely to be resolved without involving a third party, Valentina, on the advice of relatives, turned to our law firm for help.

A lawyer specializing in family-law matters listened carefully to our client and got to work on the case. He prepared and sent her ex-husband a well-reasoned letter proposing a change to the child's residence arrangement. Having received no meaningful response from the opposing side, the lawyer drafted and filed a corresponding petition with the competent family court. At our firm's request, the court ordered a medical assessment to establish, with sufficient expert evidence, that the alternating residence arrangement between father and mother was not suitable in Anastasia's case. The expert panel's findings established that the girl was indeed not ready for the Wechselmodell: she was very strongly attached to her mother, who had been primarily responsible for her care and upbringing during her first years of life. The alternating arrangement was having a negative effect on her physical and mental state, which could give rise to problems in the child's harmonious development. On the basis of the expert medical panel's findings, the court decided to establish Anastasia's residence arrangement in accordance with our client's application. Under the court's ruling, the girl was to live with her mother on a permanent basis, while spending every second weekend, as well as half of all public holidays, with her father. Establishing this arrangement at the time did not, however, rule out changing the child's residence arrangement again in the future, once the girl was older and circumstances had changed.

We wished our client strength, patience, and wisdom in a matter as important as raising a minor child. At the same time, we wish all readers of our publication happiness and harmony in their families and personal relationships. Unfortunately, life is not always a calm, untroubled stream, and it sometimes presents us with less than pleasant surprises. We hope such setbacks occur as rarely as possible, but if problems have already arisen in your life, and no one but a qualified, experienced lawyer can help you resolve them, we invite you to turn to our law firm, where we will always listen carefully, point you toward a solution, and select the legal tools best suited to your particular situation.

Family Law

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