In Section 1626 of the German Civil Code (Bürgerliches Gesetzbuch – BGB), parental responsibility is described as the duty and right to care for the minor child. Parental responsibility includes care for the person of the child and care for the assets of the child. In care and education, the parents must always act in the best interest of the child and take account of the personality and growing ability of the child for independent responsible action.
The content of care for the person of the child is defined in Section 1631 of the BGB. The parents have the duty and right to care for, bring up and supervise the child, and they must specify the child’s habitual residence. The law also makes it clear that children have a right to a non-violent upbringing and that any kind of physical or psychological abuse is forbidden.
Apart from the actual care for the child in daily life, care for the person of the child also covers legal representation, including participation in proceedings for the recognition of the paternity of the biological father or when the impugnation of paternity is necessary. As legal representatives, the parents give the child a name and make a decision about the surname. Legal representation can also be necessary to claim maintenance from the other parent.
Care for the assets of the child must be provided by the parents and is usually not subject to remuneration. The parents must administrate the assets so that they are maintained and, if possible, increased. Income from the assets must also be administrated in a proper way. Investments must always be gilt-edged.
The mother obtains parental responsibility automatically when she gives birth (Section 1626a Paragraph 3 of the BGB).
The father only obtains parental responsibility automatically if he is married to the mother.
An unmarried father obtains parental responsibility in the following cases listed in Section 1626a Paragraph 1 of the BGB:
This last option is a contentious way for the father to acquire parental responsibility if the mother does not agree to contribute. The family court shall also give parental responsibility to the father if the joint parental custody is not inconsistent with the best interest of the child (“negative proof”). The way the law is written, joint parental rights should be the general rule, unless it is not in the best interest of the child. The legislature was obliged to change the former law, where the mother had sole parental custody and the father could only get joint parental rights if he was able to prove that this was in the best interest of the child.
The strong position of the mother in German law was considered discrimination against the father by the European Court of Human Rights in Zaunegger v Germany (ECHR decision dated 3 December 2009 – 22028/04). The German legislature had to establish a way for unmarried fathers to obtain parental responsibility against the will of the mother. The legislature decided not to give parental responsibility to the biological father automatically. If the mother does not agree to joint parental responsibility, the father must go to court and ask for joint parental rights.
Although the law now says that the father shall get joint parental rights with the mother if it is not “inconsistent with the best interest of the child”, these proceedings remain a challenge. A mother who has refused to agree on joint parental rights will always find reasons why joint parental responsibility is inconsistent with the best interest of the child. If she does so, the court must consider the best interest of the child, including that joint parental rights require the parents to agree on decisions for the child.
Non-genetic parents acquire parental rights when they adopt the child.
Only married parents have joint parental responsibility automatically, or they obtain joint parental rights when they marry each other after the birth of the child. An unmarried father must proceed as described under 1.3 Requirements for Fathers if he wants to have joint parental rights or even sole parental responsibility. If he does not take the steps as described in that section, the unmarried mother has sole parental responsibility.
By definition, the mother of a child can only be the woman who gave birth to said child (Section 1591 of the BGB). The father of a child can only be a man, according to Section 1592 of the BGB.
Same-Sex Marriage of Two Women
In a same-sex marriage of two women, only one of them can be the mother in the sense of Section 1591 of the BGB. The wife can obtain the position of a parent by adoption or if a foreign court has ordered that she is the mother, and this foreign court order can be recognised by the German family court.
Same-Sex Marriage of Two Men
In a same-sex marriage of two men, one of them can become the father of the child by recognition of paternity. The husband can obtain parental rights by adoption or by recognition of a foreign court order that gives him the position of a parent.
With the adoption the child attains the legal position of a child of the adopting parent or of a common child of the adopting spouses, and the parent or the adopting spouses obtain parental responsibility (Section 1754 of the BGB).
The requirements for an adoption are defined and regulated in Section 1741 ff of the BGB. An adoption is admissible if it is in the best interest of the child and the development of a parent-child relationship can be expected (Section 1741 of the BGB). The following requirements must be met.
If the parents have joint parental responsibility, the consent of the other parent is necessary for important decisions such as relocation to another country.
The parents must exercise parental responsibility in mutual agreement and in the best interest of the child (Section 1627 of the BGB). If they cannot agree on the habitual residence of the child, each parent can file for a court decision and refer to Section 1628 or 1671 of the BGB.
Difference of Opinion in Certain Matters
If the parents are not able to reach an agreement on a particular kind of matter, such as the decision about a change of the habitual residence of the child, the family court, on the application of one parent, can transfer the decision to one parent (Section 1628 of the BGB). The court decision under Section 1628 of the BGB is only for determined situations – it is not a general decision in favour of one of the parents for future decisions. This kind of decision can be applied for if the parents need a regulation for the child’s residence until there is a decision under Section 1671 of the BGB.
After Separation of the Parents
If the parents are already separated, the parent who wants to leave the country must file for sole custody regarding the place of residence (Section 1671 of the BGB). This order will give the right for any decisions on future relocations. Section 1671 of the BGB is only applicable if the parents live separately. If the court has transferred the decision about the habitual residence of a child to one parent, the other parent’s consent is no longer necessary.
The family court will transfer the decision about the habitual residence of the child to the parent who has the better ability to exercise parental responsibility in the best interest of the child. In both possible court proceedings about relocation (Sections 1628 and 1671 of the BGB), the best interest of the child is the important factor and criterion for the court’s decision; the reasons the parent wants to leave the country are not that decisive and cannot be influenced by the court. When a parent has taken the decision to relocate to another country, the main question is if it is better for the child to stay in the actual country of residence (within the environment, social contacts, institution of education, etc) but without the leaving parent or if it is better for the child’s development to relocate with the parent to a new environment.
The following factors must be weighed against each other, and the court must decide which one it gives more importance and which is considered less important in each individual case.
The court must consider all factors, and the court order has to give detailed reasons for the decision.
In any proceedings regarding child matters, the in-person hearing of the child is compulsory, even for babies. Guardian ad Litem for Minors will be appointed and the youth welfare office is involved; they both give their opinion in the case. Although the Guardian ad Litem and the youth welfare office are not empowered to make decisions, the judges usually pay attention to their opinion in the case. The hearing of the child takes place without the presence of the parents or their attorneys. The child is accompanied and supported by the Guardian ad Litem for Minors. The court must explore the wishes and feelings of the child.
If the judge is not able to analyse and value the situation adequately, it is possible to request an expert's opinion, usually a psychological report about the child, the parents and the bonds of the child.
The feelings and wishes of the child must always be considered and are an important factor in the court's decision. The older and more mature the child is, the more emphasis will be put on his or her wishes and feelings. It also depends on the child’s ability to pronounce their feelings and wishes.
The emotional bonds of the child to other children in the family, especially to siblings and half-siblings, are one factor for the court's decision. In general, it is considered to be in the best interest of the children for them to grow up together, but the court must explore the bonds in each specific case and there is no general rule that siblings will be kept together.
In 2010, the Federal Court of Justice took a landmark decision for relocation cases, the so-called “Mexico-order” (Order dated 28 April 2010 – XII ZB 81/09). The Federal Court of Justice clarified that the benchmark for any decision about the relocation of a child with one parent is the best interest of the child. The left-behind parent’s rights of contact with the child are not relevant if the relocating parent is the primary care giver for the child and the best interest of the child requires the continuation of this relationship. The freedom of action of the relocating parent is a fundamental right that makes a court order impossible where the child and the primary care giver stay in the country. The court must find out if it is in the best interest of the child to leave the country with the primary care giver or if the best interest of the child is to stay in the country with the left-behind parent. The loss of contact with the other parent after relocation is a factor that must be weighed against the change of the person who is the primary care giver. The interest of the left-behind parent to have contact with the child is not a decisive factor for the court.
It is advisable for the “left-behind” parent to find an agreement regarding visitation rights, which can be fixed in the court hearing. Otherwise, the parent must file for visitation rights in new court proceedings.
In the “Mexico-order” mentioned in 2.3.5 Loss of Contact, the Federal Court of Justice clarified that the freedom to act as a fundamental right of the relocating parent must be respected. The parent’s reasons for relocation are not considered with priority but must be explained in the petition, to show that the relocation is in the best interest of the child. The relocating parent must show the court that he/she is able to take care of the child and provide his or her maintenance.
The principle of continuity is usually important for German judges. The relocating parent should be able to demonstrate that there will be continuity in the child’s education in regard of school systems, language, etc. A secure and stable place to live is as important as the school and possible contact persons (like family).
The only benchmark for the court decision is the best interest of the child. The left-behind parent must show why it is not in the best interest of the child to relocate and that the bonds at the actual residence are stronger than those with the relocating parent and the contact persons at the intended new habitual residence.
The wishes and feelings of a child can also be an important factor, if the child is mature enough to see the consequences of a relocation and is not obviously manipulated by one or the other parent.
The courts usually decide that the court fees must be paid half by each party, and each parent pays his or her own lawyer. The court fees include the fees for the Guardian ad Litem for Minors and the fees for the expert's opinion if there was one. Costs for necessary translations and translators for court hearings are also added to the court fees, and can amount to several thousand euros for each party.
For the lawyer’s fees, hourly rates are usual. The legal fees are extremely low and do not allow a lawyer to spend the time an international relocation case usually requires.
Section 155 of the procedure law (Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction – FamFG) establishes the principle of priority and expediting proceedings for matters concerning the place of residence of a child and the right of contact. This makes it more difficult for the parties to delay proceedings; however, the courts need time to name a Guardian ad Litem, order a hearing, etc. If an expert's opinion is considered necessary by the court, the decision of the court can take several months, as it depends on the capacities of the psychologists.
In special circumstances, the left-behind parent can file for an interlocutory order to avoid the other parent leaving the country with the child without permission before the main proceedings regarding relocation are finished.
It is extremely difficult to establish the tendency of courts, as the decision depends on each individual case and circumstances. It is often a problem to define a primary care giver when children are small and both parents are involved in their upbringing. When children are older and mature enough to pronounce their own wishes and plans for the future, said wishes and feelings are a very important factor for the decision.
With a separation of parents, it is usually necessary for one of them to relocate.
It is not legal to take a child out of the country without the consent of the other parent. If there is no consent, the parent who wants to leave the country with the child must apply to the family court. It is also a criminal offence to take a child out of the country and remove them from the custody of their parents or of one parent, under Section 235 of the German Criminal Code.
It definitely makes a difference if the child has been taken to a signatory state of the Hague Convention, in which case the Central Authority of Germany supports the initiation of civil proceedings to return the child.
If the child has been removed to a non-signatory state, the left-behind parent can initiate criminal proceedings and hope that the international police co-operation of Europol or Interpol is successful. Civil proceedings must be initiated in the state of abduction or, if the German courts order that sole parental responsibility is provided to the left-behind parent, this German order must be recognised and enforced in the state of abduction. In any case, the left-behind parent must find legal support in the state of abduction.
Germany is a signatory to the 1980 Hague Convention and applies it properly.
In theory, the timeframe for a Hague Convention case should be six weeks for the first instance, two weeks after service of the court order to file an appeal and another six weeks for the second instance. In practice, this is rarely possible and is therefore only a theoretical timeframe, but courts try to give priority to abduction cases. Expert’s reports are not required, which are the main reason for delays in custody proceedings. Usually, the court decides after one hearing in the first instance, often within two months. The second instance occasionally takes more time to prepare the hearing and take a proper decision. Six months is a reasonable average for a firm decision in the second instance. However, proceedings can sometimes take much longer, and it also depends on the judge.
Germany is a signatory to the Hague Convention.