I have noticed that I receive many e-mails with the same questions, so I have started to post the most frequent questions – and of course the answers to them – for everyone to read for free. As this section might already answer many of your questions, I invite you to browse these FAQ before you contact me (or any other lawyer) about your case.
I have also posted FAQ about divorce in Germany, inheritance law in Germany, German citizenship law, about international child abduction, about filing a constitutional complaint if your human rights are violated in Germany and about how to work with me as your lawyer. You can see the full list of FAQ on my website.
1. When does German child custody law apply?
German law applies whenever a child has its habitual residence in Germany. The citizenship of the child and/or the parents is irrelevant.
2. If the parents are married, who has child custody? Does the father or the mother have stronger rights?
If the parents are married, they both have joint or shared custody. Both father and mother enjoy exactly the same rights. The same applies if the parents were not married when the child was born but they get married later (§ 1626 I no. 2 BGB).
3. Can we have joint or shared custody if we are not married?
Yes. You just need to sign a declaration of shared custody (§ 1626 I no. 1 BGB). You can already sign this declaration before the birth of the child (§ 1626 b II BGB), but it needs to be signed in front of a government or consular official (§ 1626 d I BGB).
4. What are my rights as the father if I am not married to the mother and she refuses to sign a declaration of shared custody?
That is the trickiest case of all, unfortunately, and one in which the law is still in flux.
Based on current statutory law, the mother has the sole custody in this case (§ 1626 a II BGB), with an exception for couples that separated before Juli 1998 (Art. 224 § 2 III EGBGB). But in July 2012 the Supreme Court decided that this violated the constitutional rights of fathers. Since then, and until a new law will be passed, fathers can petition the Family Court to receive shared or full custody.
5. What happens in the case of a divorce?
Usually and in many cases: nothing. Unless one of the parents petitions the court for a custody decision, the court will not consider child custody. In that case, the parents will continue to have shared custody even after the separation and the divorce.
I generally recommend to try this route as it spares the child te necessity to appear in court and testify. (On a personal note, both my parents continued to have shared custody for me when they divorced, so that I never had to go attend court during their divorce. I am thankful for that.)
6. Which factors will the court consider when deciding about custody?
The court will apply two tests: (1) Is it in the interest of the child to end the shared custody of both parents and (2) which parent’s custody is in the better interest of the child?
If there is any chance that the parents can still cooperate (as parents, not as spouses) in the future, the court may not wish to award custody to one of them at all, but will instead maintain shared custody. This is also an important factor to keep in mind if you find yourself in a custody dispute. If you know that you are not likely to win the direct contest in the eyes of the court (typically if you are the father of a very young child), you can petition for shared custody being maintained. If you are very cooperative, the court will have a hard time taking away custody from you completely.
If the court needs to make a decision between both parents, it will consider who is better suited to take care of the child, who has been doing this for the past, who has more time (hence the preference for non-working mothers in many cases) and who will be more cooperative towards the other parent (especially regarding visitation and contact and information). With increasing age of the child, the child’s wishes will also be considered.
7. What is the “Jugendamt”?
The Jugendamt is not part of the court system, but a government agency supposed to take care of children and teenagers if their welfare is in danger or their interests are at stake. It can be compared to CAFCASS in the UK or Child & Youth Services in other countries.
In a custody dispute, the court will always involve the Jugendamt and ask them to speak to the parents and the children, make house calls and write up a report with recommendations. While these recommendations are not binding, in reality the judge will go with them. In light of this it is especially sad that the Jugendamt has a very bad track record when it comes to dealing with parents who don’t live in Germany. I have seen many cases myself in which the Jugendamt didn’t even bother to contact the foreign parent.
8. Can the government take away my children?
In extreme cases, yes. (§§ 1666, 1666 a BGB). If the government thinks that your child’s welfare is in danger, it can order the removal of your child from the family as a last resort. However, you can of course appeal against this in court. Very often, these decisions by the Jugendamt are overturned by the Family Court because the petitioner can show that the government did not exhaust all other possible options before taking this drastic measure.
9. What happens once my child turns 18?
Once your child turns 18, it is no longer a child in the legal sense. Custody law no longer applies. Your child is a free person.
10. I don’t like all of this. Can I just take my child and leave Germany?
That depends on whether you have sole custody and/or if the other parent agrees. If both parents agree, they can always leave Germany with their child or send the child away. If the other parent does not agree, you have to be very careful to not commit an international child abduction.