Child Relocation 2023 Comparisons

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:

• if they declare that they wish to take parental responsibility jointly and comply with the formal requirements (recorded by a notary, the youth welfare office or a German diplomatic mission abroad);
• if the parents get married; or
• if the family court orders that both parents should exercise parental responsibility jointly or that the father should have sole parental responsibility.

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.

• The adopting parent must be at least 25 years old (Section 1743 of the BGB).
• If the adopting parent is married, the spouses can only adopt the child jointly. A child can only be adopted by a person and his or her spouse, not by a third person. An unmarried adopting parent can only adopt on his or her own, not jointly with another person (Section 1741 Paragraph 2 and Section 1742 of the BGB).
• The genetic parents of the child must declare their consent to the adoption. This is not possible before the child is eight weeks old (Section 1747 of the BGB).
• Children over 14 years must declare their consent to the adoption. For younger children or children who are incapable of contracting, the consent must be declared by their legal representative (Section 1746 of the BGB).
• The adoption requires that the adopting parent has had the child in foster care for a reasonable period (Section 1744 of the BGB). The length of this probationary period depends on the individual case, mainly on the age of the child and the relationship between the child and the adopting parent before the foster care. A period of less than one year is usually not accepted.
• Impediment to adoption: Section 1745 of the BGB protects the interests of all genetic and adopted children of the adopting parent. Purely economic interests of the children (eg, a smaller share of the inheritance) are not recognised as impediments. Relevant interests of the children are, for example, the possibility of the adopting parent to take care and provide maintenance for all children, including the adopted child. The interests of all children must be weighed and compared in each individual case.

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.

With a separation of parents, it is usually necessary for one of them to relocate.

• Relocation to a nearby location is often not a problem of relocation but one of negotiating a visitation plan. When the new location is so close that the child can continue to attend the same school, the best interest of the child is not affected too much by the relocation, as long as the contact with the other parent can be maintained in a way that is in the best interest of the child.
• When the relocating parent moves to another town, where the contact between the left-behind parent and the child becomes more complicated and less frequent than is in the best interest of the child, the same factors and criteria apply.
• The legal structure in Germany is homogenic.

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.

• If the left-behind parent needs legal aid, it is highly recommendable to send the application via the Central Authority, which provides all necessary information and support with the application for legal aid. Legal aid is a specific kind of social aid in Germany and is only provided to people who are unable to cover the costs for the proceedings. Income and all assets must be shown to the court and legal aid will cover all costs (court fees and attorney fees) if the requesting person has insufficient means.
• The Central Authority is the Federal Office of Justice (Bundesamt für Justiz). All contact details and forms to initiate the proceedings via the Central Authority are on the website: www.bundesjustizamt.de.

• The return of abducted children is achievable with the support of the German jurisdiction. Hague Convention cases are decided by specialised and especially trained judges and cannot be filed at any district court. The judges should be aware of the main difference between a decision about parental responsibility and a return case under the 1980 Hague Convention: the return of the child can only be refused if there would be a grave risk to the physical or psychological health of the child (Article 13 I b of the Convention), while a decision about parental responsibility must weigh all aspects and relevant factors (as described above) and take a discretional decision in the best interest of the child.
• The return of abducted children to non-Convention countries is far more difficult. If the children have become habitual residents in Germany or have German nationality, the German courts have jurisdiction for the decision about parental responsibility. The only way for the left-behind parent to achieve the return of the child is to apply for sole parental responsibility in regard of the decision about the habitual residence of the child. This decision is strictly oriented on the best interest of the child, including the principle of continuity. The big advantage of the 1980 Hague Convention – that a child must return to the country of the last habitual residence if the left-behind parent has filed an application within one year after the abduction, and the return can only be denied in clearly defined, exceptional circumstances – is not applicable if the last habitual residence was in a non-Convention country. Sole parental responsibility will only be ordered in favour of the left-behind parent if the return is in the best interest of the child, while the court must consider all current circumstances.
• The court fees are EUR264 for the first instance and EUR198 for the second instance. The costs for translators and for the Guardian ad Litem are added (roughly EUR1,000 each and for each instance). The costs must usually be covered by the defeated party, which also covers the legal fees for the counterparty’s attorney (roughly EUR850 for the first instance and EUR950 for the second). The actual costs on the basis of a fee agreement (hourly rates are common) will not be covered by the counterparty. Hague Convention cases are usually very time-intensive and require a high level of qualification. The legal fees do not cover the actual costs of a specialised and highly qualified attorney.

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.