Today's parents are free parents
Parental care Parents have these rights and obligations
What is meant by custody?
The right to parental custody includes personal custody and the right to property. Personal custody rights include, for example, the right to care for and bring up the child, the right to determine the place of residence, the right to decide on health issues and the right to determine how the child interacts with third parties. The right to determine property includes, for example, the management of the child's property and assets or the right to conclude contracts for the child.
W.owhat is the difference between custody and access rights?
The right of access exists independently of custody and includes the right of the child and the parent with whom the child is not primarily staying to have regular contact with one another. Parents' right of access to their children is constitutionally protected and may only be excluded for a longer period of time or even permanently if the child's best interests would otherwise be endangered.
Access rights can also be granted to other caregivers than the parents, for example the grandparents. However, this only if the contact serves the child's best interests, which must be positively determined in the event of a dispute.
What happens to custody of the children after separation and divorce?
In the vast majority of cases, even after the separation of the parents, joint custody of the parents remains. On request, the court can also grant custody of one parent or parts of it alone. The court will grant such a request, for example, if the parents lack a minimum level of willingness or ability to cooperate for the benefit of the child and the child is severely burdened by the constant arguments between the parents. Even if one parent moves far away - e.g. abroad - and the exercise of joint custody presents the parents with practical difficulties, a transfer to one parent can also be considered. In such a case, however, the parent actually caring for the child can also be given power of attorney to exercise custody. A court decision is then not necessary.
Most of the time, the mothers are granted custody. In the event of a controversial decision on custody, is there a legal priority for the mother?
No, only the best interests of the child are decisive. The decision takes into account which parent is better suited to bring up and care for the child, with whom the child has closer ties and with whom the willingness and ability to support the child is better developed. The continuity principle is also taken into account. If the child has been living in one parent's household for a long time and both parents are equally well suited, the court is unlikely to order a change to the other parent.
The fact that the mother is more often granted custody in the event of a dispute is usually due to the fact that in everyday life, especially with younger children, the mother devotes herself more intensively to the children than the father and the closer ties between the children and her with otherwise the same upbringing suitability of both parents can make the difference.
What is the importance of the child's will?
Depending on the age of the child, when deciding on custody, the child's will also plays an important role. In this respect, however, special attention must be paid to whether the will is formed independently or - which unfortunately does not happen very rarely - is based on massive influence from a parent. Aptitude for upbringing also includes so-called attachment tolerance, i.e. the ability and willingness to allow the child to come into contact with the other parent without fear and without negative influences. Anyone who constantly belittles the ex-partner in front of the child, makes contact more difficult or even refuses to do so, may risk losing custody of the other parent.
What about custody of unmarried parents?
If parents are married to each other when the child is born or if they marry later, joint custody arises by law. In the case of unmarried parents, the father can obtain joint custody by declaring to the youth welfare office or a notary that they want to exercise custody together. Such a declaration of custody can be made before the birth. If the mother does not agree to joint custody, an application for the transfer of parental joint custody can finally be submitted to the family court (Section 1626a BGB).
What are the chances of a request from the father to transfer joint custody if the mother does not agree?
Since a change in the law that came into force in May 2013, the illegitimate father has the option of gaining parental co-custody against the will of the mother. The prerequisite for a successful application is that paternity has been established and that the transfer of custody does not conflict with the best interests of the child. Here, too, a minimum level of willingness and ability to cooperate on the part of the parents is required. However, father and mother are obliged towards their child to actively seek an objective understanding with the other parent. Therefore, the mother cannot simply force the rejection of the father's application for custody by simply refusing to communicate with the father.
What are the chances of an application from the father to set up the change model?
In a much-noticed decision from 2017, the Federal Court of Justice made it clear that the courts may order care for the child in the so-called parity exchange model - that means care of the child by father and mother at roughly equal proportions of time - even against the will of one parent . So far this has been very controversial and has been rejected by a significant number of courts. At the same time, however, the Federal Court of Justice has made it clear that childcare in the alternating model can only be appropriate to the welfare of the child if there is a sufficiently stable communication basis between the parents. So for parents who take every little thing as an occasion for a violent argument (even with the involvement of the children), the changeover model will hardly be the right one.
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