Going to court
As parents who are separated or living apart, are you in conflict with regard to parental custody, access and/or the place of residence of your joint child? The purpose of our services at ZAnK is to show you what the next steps could be in highly contentious disputes with relevance to more than one country. Conflict resolution in court is one of the options open to you. We have set out below the key aspects of the family court proceedings and in particular proceedings relating to child custody if there is a cross-border element.
What family court proceedings consist of
In principle, there are two ways in which you and the other parent can solve your family conflict: one path leads to court, whilst the other remains outside the courtrooms.
However, it is also possible that the two ways complement one another. There is no one right way. It depends on your general situation and what direction is appropriate for you and your family.
We would therefore like to outline for you the main features of conflict resolution, both in court and out of court.
Some questions arise if you decide to go to court or if the other parent has already initiated court proceedings. Many parents find themselves in a situation that is completely new to them.
However, there is some degree of predictability. The central rules of procedure such as “fairness” and “justice” are regulated by law, as is the question of the decision-making authority. The decision-making criteria are also defined beforehand in terms of substance, i.e. content: the current legal situation and legislation governing custody and rights of access apply. The costs of court proceedings are also legally regulated and can in principle therefore be calculated beforehand.
The framework of proceedings before the family court
Specifically, this means that there is no need for you to negotiate on the above-mentioned points as the court works within a clear framework:
In Germany, jurisdiction for deciding in family conflict cases normally lies with the family court. In principle, the court of the place in which the child has their habitual residence, i.e. the child’s primary place of residence, has jurisdiction in custody and access conflicts. If the child’s primary place of residence is in a foreign (European) country, the local (family) court there has jurisdiction.
If you live in Germany and wish to conduct custody or access proceedings abroad, the Federal Office of Justice as the Central Authority for international custody conflicts can provide further information and support.
The Federal Office of Justice can likewise give you details of which courts are in charge of your application if there is a cross-border element.
A judge is the decision-making person. This means that the professional qualifications of the decision-making authority are also defined in advance. The judge is bound by the current legal situation and legislation when reaching a decision.
As a rule, therefore, family court proceedings end with a decision by an external third party which is binding for both parents.
Procedural law provides for the judge to work towards an amicable agreement between the parents during the proceedings. The family court may also open the door to “within-court” or “close-to-court” mediation.
In this respect, the outcome of family court proceedings may also be a mutually agreed solution by both parents.
Find out about various ways in which you can deal with your conflict outside court:
There are special rules of procedure when it comes to family court proceedings. In Germany, for example, depending on the constellation of the case the judge may have to appoint a guardian ad litem for the child. The guardian ad litem has the task of representing the interests of the child effectively. A guardian ad litem must be appointed for a child if, for example, those who have physical custody of the child, i.e. normally the parents, are not in a position to represent the interests of the child effectively. This is the case if, for example, custody has been (partially) withdrawn from them. It may also be necessary if the right of access of one parent should be restricted.
In matters of parental responsibility, custody and access disputes for example, there is no statutory requirement to be represented by a lawyer before the local, regional and Higher Regional courts. It can nevertheless be helpful in many cases if a lawyer who specialises in family law is there to support and represent you.
It is important to choose someone with knowledge of European and international family law. If the conflict has a cross-border element, experience in the application of European legal provisions such as the Brussels IIa Regulation and of the Hague Conventions should be a prerequisite.
Since legal advice requires a high degree of specialisation in international family law, it is common practice for lawyers in this field to charge hourly rates agreed in advance. You should therefore clarify fee terms and conditions before employing a lawyer.
Do you require the support of a lawyer? Please feel free to use our directory.
Needy persons are awarded legal aid from the competent German family court if the court identifies that they have “sufficient prospects of success”. If the competent court is outside Germany, we would be happy to help you clarify whether and under what conditions legal aid is awarded.
More information
As the Central Authority for international custody conflicts, the Federal Office of Justice provides information on support options in cross-border custody and access disputes. You will find information on legal bases, cost issues and the states to which the relevant international and European legal provisions apply.
We would be happy to support you in reaching a decision and to explain in more detail the criteria, opportunities and risks of initiating legal proceedings and of amicable dispute resolution.
You can send us a message or call us during our consultation hours.