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Child custody

The notion of custody is different from State to State, with regard to the terminology (as it is often called e.g. “parental responsibility”) as well as concerning the rights which can be derived from it (what can be decided by a parent alone?).

Child custody in Germany

Parents who are married to each other have joint custody of their children. This remains the same after a separation or divorce unless one of the parents applies to a court for a different regulation, provided that there are good reasons for it. If parents live at two different places, this is not sufficient reason to terminate joint custody.

For parents who are not married to each other, the legal situation in Germany until today is that the mother has sole custody of their children. This can be changed by means of a so-called custody declaration, which can be signed at the Youth Welfare Office already before the child’s birth, or by filing an action at the Family Court.

What child custody means in Germany

Child custody means that parents have the obligation and the right to care for their child. Even after parents have separated, they have the duty to communicate with each other in order to make decisions which meet the best interests of their child. If this does not succeed, the Family Court can decide to award custody to one parent alone.

It is important to note that German law provides for the possibility of division of custody rights: It is possible, e.g. to award the right to determine the place of residence of the child to one parent alone. This parent has the right to decide where the child should live, and can usually move with the child to another country without the other parent’s consent. The parent does not need to worry that he or she will be charged for child abduction.

Please note: Besides child custody, the right of access is always of major importance. Even if one parent has sole custody, the child has a right to contact with the other parent.

Child custody in other countries

Many other States do not make a difference between married and unmarried parents: their national laws provide that unmarried parents, just like married parents, have joint parental responsibility for their children.

No matter if the parents are married or not: in many countries, only matters of everyday life may be decided only by the parent with whom the child resides, without the other parent’s consent. In many countries, relocation to another country with your child - or in some countries even just leaving the country, no matter for what purpose - requires the consent of the other parent – even if he or she does not live together with the child, does not have the right to determine the place of residence, or does not share custody of the child. Therefore, a parent who intends to move from another country to Germany should check beforehand if he or she has a right to do so. Otherwise, he or she may run the risk of getting arrested at the border, or being sent back as a result of proceedings under the Hague Convention.

However, the legal provisions vary widely from country to country. Whether and which rights a parent has under the law of another country, often has to be determined in the individual case.

Moving to another country

Relocating to another country can also have implications for the custody of your child: Many international rules provide that the applicable law for deciding on custody (relationship of authority) is the law of the child’s habitual residence. For example, if a mother moves permanently with her child from Germany to a country in which unmarried parents have joint custody, the father, by operation of law, will automatically obtain joint custody of the child. So, if later on you leave the country with the child without your partner’s consent in order to return to Germany, it may happen that proceedings for the child’s return will be instituted against you.

What is also important to know:

After a move, the previous legal relationship usually persists for some time. The new legal relationship does not become effective until the child’s “habitual residence” is actually presumed to be at the new place of residence.

Moreover, a special provision applies between Contracting States to the 1996 Hague Convention for the Protection of Children: It provides that a parent may acquire parental rights but cannot lose any parental rights as a result of having moved to another country.

Recognition of German or foreign custody decisions

A court decision is indisputably effective in the country in which it was made. What is more difficult, however, is to clarify if and how it will be recognized in another country. It is true that there is worldwide consensus on the basic idea of mutual recognition of foreign court decisions. But often this requires special procedures. Here, too, international regulations are helpful: The European Brussels II bis Regulation, the European Convention concerning Custody of Children, and the Hague Convention for the Protection of Children provide rules to simplify the recognition and enforcement of court decisions. They apply between the Contracting States.

 

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