International law on child custody

If a family has links to more than one country, this can lead to uncertainty with regard to custody rights. Do you have joint custody? Does one of the parents (or a guardian) have sole custody? And is custody actually subject to the same regulations everywhere? As a matter of fact, the rules governing custody differ from one country to another. Information on how parental custody in the particular case may be arranged is provided below.

Who advises on custody rights?

Your local Youth Welfare Office can provide advice on custody issues in Germany. Charitable or church advisory bodies are also often good sources of advice.

Information on custody legislation in a particular other country can be obtained from the authorities there, from the German Office of Justice as the Central Authority for international custody conflicts or the relevant foreign embassy or consulate.

If you are particularly concerned about how family links in more than one country will affect your custody rights, do not hesitate to get in touch with us. We will help you get clarity on the matter.

Custody rights in Germany

In German family law custody is regulated differently depending on whether or not you are married.

When do you as parents in Germany have or acquire joint custody rights? If you are married to each other, in Germany you have joint custody of your child. All important matters are decided jointly. This remains the case even after separation or divorce. It only changes if one parent applies to the family court and there are good grounds for a different arrangement. If you as parents are living in different places, this will not generally be seen as a reason to lift joint parental custody.

If the parents are not married to each other, the legal situation is that only the mother has custody of the child until this is changed by both parents together making what is known as a custody declaration. The declaration that they want to exercise joint custody can be given to the Youth Welfare Office even before the child is born. If the parents (to be) are not in agreement, the father can apply to a family court for joint custody. Provided that the court does not regard joint parental custody as being inconsistent with the best interests of the child, the application will be approved, sometimes in a simplified procedure.

What happens, though, if after separation it is not possible to come to an amicable agreement on decisions concerning the joint child? A family court can then decide to transfer parental custody to one parent only. In that case access rights take on particular importance. That is because even if one parent has sole custody, a child has a right of access to the other parent.

More information about access rights can be found here.

For you as a parent, having custody means you have a duty and the right to look after your minor child. Among the rights covered by custody are the rights

  • to choose the surname;
  • to select and enrol the child in a daycare facility or school;
  • to take decisions regarding education and religion;
  • to consent to medical treatment;
  • to determine the place of residence.

German law allows custody rights to be split. This means that a family court can transfer decisions about a specific matter to one parent alone. Even in the case of joint custody, for instance, it is possible for the right to determine the place of residence to be transferred to the mother alone or to the father alone, or even to a guardian. In this exceptional case a parent can decide for themselves where the child is going to live without the consent of the other parent.

The German concept of custody is not easily transferable – legally and culturally there are huge differences between countries across the world. Don’t hesitate to contact us.

Custody rights in other countries

The differences with regard to custody between many countries concern the terminology (sometimes, for instance, it is called “parental responsibility”) and the scope of the resulting rights (what can one parent decide on their own?).

In many countries, unlike in Germany, whether or not the parents are or were married to each other is not critical: there the law provides for joint parental custody (often referred to as “parental responsibility”) also for children whose parents are not married to each other.

Laws and regulations on custody differ very widely across the world. Whether and which duties and rights a parent has can therefore usually only be determined on a case-by-case basis, but always with specific regard to the country.

Frequent differences concern the scope of the rights associated with parental responsibility:

  • If, for instance, a child lives with either the mother or the father alone, in many countries the mother or father can only decide on everyday matters, even if they have sole custody. Every fundamental decision, such as a move abroad with the child, requires the consent of the other parent. This applies even if the other parent does not live with the child and does not have custody or the right to determine the child’s place of residence. In some countries this is even the case for short holidays abroad.
  • In many Arab jurisdictions, custody comprises the actual care for a child (hadana), but not legal representation or guardianship (wilaya). The former is generally held by the mother (or a female relative), the latter by the father (or a male relative). The guardian supervises the care and so also determines the child’s place of residence.

If there is joint parental custody, neither of the two parents has the right to determine where the child should live without the consent of the other. In many countries this applies even regardless of who has custody.

What are the rules on custody?

The question of which country-specific regulations on parental custody apply to you and your family arises in particular if your child lives in more than one country in the course of their life.

What counts in the first instance is the habitual place of residence.

What custody law applies for your child depends on the country in which your child currently has their habitual place of residence. In other words, if your child has the centre of their life in Germany, then German law applies regardless of where the parents live or the nationality of the child. Conversely, Spanish regulations on parental responsibility will, for instance, apply if your child with German nationality habitually lives in Spain.

However, the Hague Child Protection Convention provides for a particular exception in this regard: if the habitual place of residence changes because of a move to a different country, new parental rights can be acquired if the law there allows for this. Once acquired, however, rights cannot be lost again. They are taken along as if in a rucksack, as it were.

When clarifying issues of custody, the law of the child’s habitual place of residence must be applied, but any parental rights “brought along” must be considered as well. These continue to apply.

An example: As unmarried parents, you emigrate from Germany to another country permanently. This country provides for joint parental custody for children of parents who are not married to each other. The father thus acquires custody even without a prior agreed custody declaration.

This means, firstly, that the initial custody arrangements have been changed because of the child’s new home and the laws applicable there. Should one of the parents subsequently want to move abroad with the child again, this could only happen if both parents were in agreement.

Secondly, however, should you as a family return to Germany together again at some point, then the joint custody rights acquired abroad on the basis of the laws prevailing there will continue to apply.

Will an existing court decision on custody be recognised abroad?

Sometimes conflicts about custody rights have to be settled in court. If there is a cross-border element, the extent to which a decision of a family court in a country is recognised in a different country can be significant.

Are you unsure whether you can still rely on a court decision made in one country after moving to another country? It is often actually difficult to clarify and predict whether and how this is the case.

Decisions of foreign courts can be recognised worldwide, but this usually requires special proceedings.

The issue is easier to clarify within the European Union (EU) and if the States have signed the relevant conventions.

International regulations, particularly the European Brussels IIa Regulation, in certain cases also the European Custody Convention and the Hague Child Protection Convention, have simplified the recognition and enforcement of foreign family court decisions, at least between the respective member/contracting states.

Find out more about the international legal principles.

While decisions of family courts of an EU or contracting state apply in all other countries by operation of law (except for Denmark), every agency or body to whom these are presented will (have to) consider again in the individual case whether there are grounds to refuse recognition. Recognition above and beyond individual agencies or bodies is made binding by a court finding. Application for such a finding must be made to the competent court of the country in which the decision is to be recognised. The Central Authorities may be able to help here.

Refer to our directory to find who to contact with regard to recognition or enforcement of a court decision.

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