What court tactics hit someone back
Revoke custody & sue - requirements, procedure, duration & costs
In the following you will find out when you can withdraw custody and sue for the other parent and what must be observed.
3.1 Reasons & requirements
Whether a parent does not adequately fulfill his duty of care and does not make a decision for the benefit of the child can be a subjective assessment.
Nevertheless, there are some offenses that can generally lead to a withdrawal of custody:
- Serious upbringing errors
- Abuse of custody
- Health hazard
- Questionable behavior by a parent e.g. B. due to an addiction
- A dangerous environment from third parties
- Misappropriation of the child's wealth
- Neglect of compulsory school attendance
If you discover one of these offenses and can also prove it, the requirements are met to be able to withdraw custody & sue. The assessment that the other parent is "poor company" for the child is not sufficient here.
In order to be able to withdraw custody & sue, you can proceed as follows:
- Find the conversation: If you notice again and again that the other parent is not sufficiently fulfilling their duty of care and your child is suffering from it, you can first talk to the other parent or guardian. In this way, a solution to the problem can often be found and a custody dispute can be avoided.
- Gather evidence of the wrongdoing: If a conversation does not improve the situation, you can gather evidence of the breach of the duty of care. Document e.g. B. Abuse of your child through photos, record misconduct towards the child in writing and / or keep bank statements that prove the unlawful use of the child's property.
- Inform the youth welfare office: The youth welfare office can provide an initial assessment of the situation and basic advice on how to proceed. The last resort is to completely withdraw custody of the other parent.
- Apply for sole custody: If the other legal guardian does not change their behavior, the application for sole custody is the last option to ensure the best interests of the child. The application can be submitted to the family court at any time and in principle informally.
You can find out which additional criteria must be met so that you can withdraw custody of the other parent and obtain sole custody in our article on the subject of "Receiving custody".
► Would you like to withdraw custody of one of your parents and sue them for the good of your child? advocado will find the right lawyer for you. He will contact you for a free initial assessment of your concern. Get an initial assessment now.
3.3 Process and duration of the custody proceedings
If the application for withdrawal of custody has been made, the family court has the task, according to Section 1666 of the German Civil Code, to quickly avert the danger to the child - and to decide whether a parent should be completely or partially withdrawn because of their misconduct. The court proceeds as follows:
- Examination of the application by the family court: In the course of the proceedings, the court examines whether the evidence provided clearly shows that the other parent has acted wrongly and whether the child's best interests are at risk. At the latest one month after the start of the proceedings, the court sets a hearing date - here parents and child and, if necessary, the youth welfare office are asked about the family situation in order to be able to assess the effects of the misconduct in detail.
On the basis of this, the court then assesses whether the accused parent has committed misconduct and is therefore unsuitable for bringing up the child. Then the family court will withdraw custody of the parent concerned and grant the plaintiff sole custody.
- Decision on sole custody: The court decides whether the plaintiff is also able to take sole custody on the basis of the following criteria:
1. Continuity in upbringing,
2. Ensuring the best possible support for the child,
3. Maintaining the child's social ties,
4. Will of the child.
In order to be able to assess the latter, children from the age of 14 must inter alia during the custody process. be asked which parent they would like to live with. However, the court is not bound by the wishes of the child when making a decision. If the court cannot adequately decide on the custody case after examining the documents and hearing all parties involved, an external expert will be called in to assess the situation.
- Final judgment on the regulation of custody: Complete removal of custody is the last option to resolve the custody dispute. It is also possible to give only certain parts of the custody to one parent alone - e.g. B. the right to determine residence. The plaintiff's request to withdraw custody of the other parent is granted if the transfer of sole custody is in the best interests of the child.
If one of the parents does not consider the judgment to be in conformity with the law, a complaint can be lodged with the Higher Regional Court. However, the court then does not check the accuracy of the content of the decision, but the correct application of applicable law. The complaint is therefore not a means of obtaining a new decision by the court. If the Higher Regional Court determines that there are procedural errors or that applicable law has been applied incorrectly, the judgment will be amended or revoked and referred back to the local court for renewed hearing.
For custody proceedings there is - as action should always be taken for the good of the child - an acceleration requirement. The court is therefore required to resolve custody disputes as quickly as possible.
The family court will be able to conclude proceedings with clear evidence in about 6 weeks to 3 months. If the court cannot make a quick decision on custody based on the information and documents available, a second hearing will follow. Here, the custody case is reassessed by an expert report. The procedure can then be extended for up to a year.
4. How can a lawyer help?
Even if there is a legitimate reason to withdraw custody and to have it sued, the custody application can definitely be rejected by the family court. In addition to an incomplete application, the decisive factor can also be missing or inconclusive evidence of a breach of the duty of care or no out-of-court attempts at solutions such as discussions between the parents or with the youth welfare office.
A lawyer can ensure that all requirements for a custody suit are met, that the relevant evidence is documented in detail and unequivocally and that all out-of-court options to resolve the custody dispute have been implemented. In addition, as part of the custody procedure, he can ensure that the appropriate legal strategy is selected so that the family court can quickly withdraw custody for the benefit of the child and react appropriately to any unpredictability or tactical maneuvers by the opposing party.
5. Costs of custody proceedings
The costs of having custody withdrawn in court and obtaining sole custody depend on the amount in dispute about which the proceedings are being negotiated. The court determines this. We will now explain to you which costs may arise on the basis of the value in dispute.
In principle, according to Section 45 of the Law on Court Fees in Family Matters (FamGKG), custody proceedings are based on a value in dispute of up to € 3,000. If custody proceedings are the follow-up to a divorce, the amount in dispute is 20% of the amount in dispute from the divorce proceedings - but no more than € 3,000. Any lawyer's fees are calculated in accordance with the Lawyers' Remuneration Act (RVG). If no out-of-court solution to the custody dispute is possible, the court costs will be determined in accordance with Section 34 of the Court Fees Act (GKG).
Accordingly, a maximum cost of € 537.30 can be expected for a custody dispute. However, you can also conclude an individual remuneration agreement with the lawyer regardless of the provisions of the RVG. Here, the lawyer is lump-sum z. B. paid per hour worked for his performance.
Who bears the costs?
The costs for the withdrawal of custody or for a custody procedure can be reduced or financed with the help of various options:
- Cost sharing in the case of a claim for sole custody: A cost waiver applies to family law litigation. This means that each party has to pay their own legal fees - however, the court costs are to be borne by both parents at 50%.
- Legal aid: Needy custodians who want to withdraw custody and sue can be granted legal aid as financial support in court proceedings. The prerequisite is that court and lawyer costs cannot be raised for the process. An informal application for legal aid must be made in writing or on record at the office or at the court hearing. The following documents must be enclosed with this application:
1. Proof of the economic situation - here, however, the usual official forms must be used -,
2. Draft complaint or a detailed description of the facts of the case with a justification for the complaint - the application will be rejected if there is no sufficient justification for the need to withdraw custody.
- Costs covered by legal expenses insurance: Legal expenses insurance companies only cover the costs of proceedings to clarify custody in rare cases. However, it is possible that initial legal advice on questions of custody will be covered by the insurance. Whether the later procedural costs are also covered depends on whether the insured person also has family law processes covered by their individual policy.
6. Tip: legal support in custody proceedings
If a parent's behavior endangers the child's well-being, their custody can be withdrawn. In this context, a family law attorney can ensure that all evidence of the wrongdoing of the other custodian has been documented beyond any doubt and that all possible out-of-court solutions have been implemented. In the event of a lawsuit, he can use a suitable legal strategy to ensure that all imponderables or tactical maneuvers by the other party can be adequately responded to and that sole custody is quickly awarded to you.
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If the well-being of the child is at risk, the youth welfare office can withdraw custody of the parents or one of the parents on the basis of a court order by the family court. The reasons for the withdrawal of custody are z. B. serious educational errors, mistreatment, neglect, health hazards, a dangerous environment or neglect of compulsory schooling.
Anyone wishing to withdraw custody of the other parent must submit an application to the responsible family court. This is absolutely necessary - regardless of whether the parents have mutually agreed on it or not. The family court examines the application for the withdrawal of custody and makes a decision in the best interests of the child.
No, only the family court can refuse custody - if joint custody would endanger the best interests of the child. If the parents are unable to cooperate with each other, and if there is often a serious dispute and the bond between father and child is missing, the family court can refuse joint custody.
If one parent wants to withdraw custody of the other, he or she can apply to the family court at the same time, so to speak, for sole custody. However, there is no separate legal action to obtain custody.
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