New Child Custody Law in Germany (May 2013)

(This is an update to my FAQ about child custody law in Germany.)

For a long time, child custody in Germany was automatically awarded to the mother of the child if the parents were not married at the time of birth. For a long time, a great many people found this to be unfair, both to the fathers and to the children who were often deprived of one of their parents. For a long time, people petitioned the Department of Justice and Parliament to amend the law. I myself represented a fathers’ rights group in a meeting with then Secretary of Justice Ms. Zypries in 2005. In 2010, the Supreme Court ruled the law to be unconstitutional.

Now, in 2013, the child custody law was finally amended and a new child custody law came into effect on 19 May 2013:

So far, unmarried parents could obtain joint custody if they both signed a joint custody declaration. This gave the mother a veto, which many mothers unfortunately abused (to obtain financial benefits, to force the father to do things he otherwise wouldn’t want to do, to move away from the father to disrupt or prevent contact).

Now, the Family Court can rule that both parents have joint custody. (Joint custody does not necessarily mean that the child spends equal time with either parent, it only gives the parents the same legal rights and forces them to come to an agreement about all major decisions in the child’s life.)

This requires a petition from one parent (typically the father). The court has to award joint custody to both parents unless joint custody would contravene the welfare of the child. It is hard to imagine cases where the welfare of the child would be endangered by having two guardians instead of one. The law assumes that joint custody is in the interest of the child (§ 1626a II BGB).

The petition will be served on the other parent (typically the mother) and the court gives them a deadline to respond. For the mother, this deadline has to extend at least to 6 weeks after the birth of the child (§ 155a II FamFG). If the responding parent does not provide any reasons against joint custody, the Family Court will render its decision in writing and without a hearing (§ 155a III 1 FamFG).

This is far from the changes that I would have liked to have seen (total equality between married and unmarried parents and between mothers and fathers), but it is a considerable improvement for unmarried fathers. I am curious to see how it will play out in contested proceedings.

About Andreas Moser

You will most likely find me in the forest, next to the lake, reading a book. Just follow the cigar smoke!
This entry was posted in Family Law, German Law, Germany, Law and tagged . Bookmark the permalink.

44 Responses to New Child Custody Law in Germany (May 2013)

  1. Pingback: 10 FAQ about child custody law in Germany | The Happy Hermit

  2. C Maxon says:

    Although laws are in place (and have been for some time) that protect both father and child’s basic human rights to access and know one another in a meaningful way, the courts choose only to enforce the mother’s right to the father’s wallet (under the guise of child welfare). Never mind if the father desperately wants access to his child; never mind if the mother deliberately chose to have and rear a child independently of a father’s presence; no matter if the mother is perfectly able to financially support that child independently; the courts only demand his money and offers him no remedy against his alienation.
    It is unconscionable that the courts are allowed to pick and choose which laws to enforce. Why do not lawyers effectively (or perhaps even try) to argue against this injustice? The laws are there; the grounds for remedy exist; it seems, it is the will to seek such justice that remains elusive.
    Yes, a father can win a judgement granting access, but it is not binding on the mother. If she chooses not to comply, that’s just too bad. “Our hands are tied”, say the governments. The father can go back to court (at his expense of course) and get a second order for access, which again the mother can simply ignore without consequence.
    The German government goes all out to collect sometimes ridiculous sums of money from absent fathers (who’s absence is NOT consensual) for children they do not even know by no fault of their own, while allowing mother’s to deny the basic right’s of both father and child without any consequence whatsoever.
    This is true even when the father fulfills his financial duty happily and willingly. It is a disgusting abuse and pure discrimination in law. Where are the hot shot lawyers challenging the courts to enforce the rights of all parties within the family?? Child support enforcement has become far reaching with both monetary and criminal consequences for non compliant fathers. When will the courts begin to impose such penalties on those mother’s that are effectively abusing their own children with their pettiness and alienation? Such mother’s are unfit, and the courts are financially rewarding them for being so. The true cost placed on society as a whole.
    I can’t apologize for my rant inspired by reading this bogus change in law. It is infuriating. This new law will not change anything. It will only offer CYA for German courts to continue with business as usual. And likely give a new false hope for father’s and the opportunity for more lawyers to earn even more money for their ineffective “services”. The judgements will not be worth the paper they are written on. I sincerely hope my statements are proven wrong. I won’t hold my breath.

    • When contact and access orders are circumvented by the custodial parents (usually the mothers), the courts can enforce penalties and sometimes do so.
      Also, you can request the appointment of an “Umgangspfleger” which will henceforth substitute the custodial parent’s consent.
      There are ways. I am not saying it isn’t tough, but most cases that I see suffer from inefficient lawyering (or from fathers trying to represent themselves).

      I am happy to put up a list of FAQ about visitation, access and enforcement in Germany, but I am waiting for someone to send me a book from my wishlist to convince me to push it to the top of my to-do list.

      • Indigo says:

        Please think about pushing this up your to do list my friend. There are many good fathers that could do with a solid place of reference regarding seeing thair children. I for one would be very greatful for your time if you chose to do a FAQ regarding this subject.

        Warm regards and respect.

      • If at least one of those concerned fathers could send me at least one of the books from my wishlist it would help a lot to influence the order of my to-do list.

  3. Indigo says:

    Thank you for writing about the new law. Does a father have to apply to court before 6 weeks or can he do this any time? If the mother brings up reasons why she won’t consent to this, does it then go to court so evidence from both party’s can be shown to the court?

    • The father can do this anytime. The application can also be filed years after the birth of the child. There is no limitation.
      And you are absolutely right. If the mother files objections, the court can then schedule a hearing in which both parties will be able to file their legal and factual arguments.

      • Indigo says:

        Thank you sir.

        I will see if I can put some penny’s together. Will look at your wish list. Might take a little while due to me being in debt due to unsuccesful child abduction case. But will certainly consider your words on my other comment.

        Kind regards.

  4. Akthemoor says:

    I have a question sir, my situation is a very unique one, and I was wondering if you could give me a positive answer on the issue. I am dating a German national who had a child with an ex military American. They were never married, and although his name is on the birth certificate, she brandishes documents that shows she has sole say over the child. Here is where it get’s interesting… The father is a confirmed sociopath, and is married to another German national who supports him. He can’t hold a job, is currently unemployed and pays child support only when he feels like. He is verbally abusive to the mother in front of the child (8 months). I want to have her move to the states because she and the child have their passports, but I fear the courts will award this sociopath joint custody one he puts on a crying display in court. This is the one time that I wish the law was what it was before. However I have to work with what I can deal with. So I’m asking you three things: Can she leave the country to live with me where I can try to provide a better life if she has sole say and if she has her passport.. Also if it goes to court is her best bet to show the courts that he is insane and unfit to have joint custody, and third if I marry her and have a child with her, what power would that give us over him although he still has rights?

    • If the mother has sole custody over the child, she is free to leave Germany with the child and move to you. By doing so, Germany loses jurisdiction (unless there is already litigation pending) and everything will fall under the law of your country henceforth.

      • Akthemoor says:

        I can’t thank you enough Mr. Moser, I truly do appreciate the info. So even with his name on the birth certificate, she can leave? One more thing sir, why then does her lawyer tell her that she has to take it to court, and possibly lose custody over the child? I fear he does not know what he is talking about. So this means that she does not need to go to court? Do you know where I can find the writings for this in German to show her so she can bring to her lawyer?

      • The birth certificate is never relevant for custody.
        I have no idea why her lawyer would say that.
        You said that she already has paperwork stating that she has sole custody. That’s enough. I also wouldn’t see the point of going to court because what more than sole custody can she get?

  5. Akthemoor says:

    I just have to ask you again to be 100% sure because the child office tried to force her to have this man around her and the child and I just don’t want that they charge her with child abduction when he goes running to the polizei which I know he will do

  6. Akthemoor says:

    Awesome Mr. Moser you’re a life saver. So like you said, Germany loses jurisdiction. Her only concern is that once she is in the states, that he will then have the right to keep her from going back to Germany. Could I call a family office here to find out if he will keep her from leaving or is that something you would be able to shed light on?

    • For the father to try to prevent the mother from leaving Germany, he would need to file for joint custody with the Family Court. Once he does so, your girlfriend will be notified. As long as she doesn’t hear anything from the Family Court, she is safe to assume that nothing has been filed.
      Whether future returns to Germany by your girlfriend will be dangerous depends on how long she will stay there. If she will always only be there for a short time for holiday, she won’t establish jurisdiction. If she/you will move to Germany again in the future, then German jurisdiction will of course be re-established.

  7. Akthemoor says:

    Your knowledge is astounding. Thanks a million!

  8. Akthemoor says:

    By the way mr. Moser, my girlfriend would like to contact you in German if that’s ok for advice to see exactly what steps she should take because her lawyers are not helping us and we feel almost hopeless. I thank you sir

    • Oh yes, that’s absolutely OK. See my contact page for my e-mail, Skype and other means of contact.

      • Akthemoor says:

        Just let me know what book from your wishlist you would like to read next (in case someone else already bought it) with an address of your choice and I can send it to you for assisting us mr. Moser. That is a small price to pay for you to guide us in the right direction

      • Thanks a lot for that!
        I am just about to move from Lithuania to Italy, so I’ll have to wait a few days until I will be able to post my new address in Sicily.

  9. akthemoor says:

    No problem, and so you know my girlfriend messaged you at the email you provided me. Hope to hear your response soon!

    • Thanks, I received her e-mail and I will reply soon.
      Here’s my address in Italy: Andreas Moser, Via Cucinotti 56, (ex VI traversa), 98047 Rometta Marea (ME), Italy. Thank you very much for the surprise already!

  10. JB1313 says:

    Are you taking cases in Germany again, or still just offering advice? Thanks.

    • I am offering advice and consultation, both via e-mail or over the phone, but I am currently not a member of the bar in Germany as I live in Italy now. So I can’t take on any court cases in Germany.

  11. Kandi says:

    I automatically gained sole custody to my kids since their dad and i were never married. Now he applied for parental rights but he was so abusive to the extend of photoshoping my pictures and posting on the web that the Judge ruled out his application but i applied for regular umgangsrecht so that he was able to see the kids regularly and this was approved. Problem is, the guy can not stop dictating to me what i should or should not do, for example, he spoils for trouble evrywhere, in school, kita and whenever he knows i go to.
    The court had ordered mediations but the mediators gave up on us as the Man wouldnt cooperate.

    Question is, what will happen now? Is he allowed to bully me given that i have sole custody?

  12. Christopher says:

    Hello Mr. Moser,

    Finally, somebody that is looking out for the fathers. I really appreciate it. Ok, here is my situation. I have an 8 year old girl who resides in Mannheim, Germany. I live in NY. Cutting to the chase about the abuse of power the mother bestows upon me and the threats of me not seeing my daughter from time to time (predicated on her own mood swings), man at the time, etc., I would like to know what I can do about visitation rights. I currently pay an obscene amount of child support (1,100USD) a month in which I am currently fighting. So I feel the acknowledgment of such should provide sometime of legality of visitation no? Even though I visit her every Christmas, I am only allowed (not court ordered) to be with my child for around 9 hours a day. During these times, I hope the mother doesn’t change her mind and cancel visitation with my daughter altogether. Se is also engaged to someone who she has told me herself is extremely jealous, a racist (my child is mixed) and very controlling. So naturally, I am fearful of something happening there.

    I wish to obtain the following. Please let me know if this is even possible and where to begin.

    I want to have something in place to where we can workout visitation rights with me. Ex. If I have her for a Christmas (either in Germany, uninterrupted during my visit or in the USA) then she stays for summer in with her mother and vice versa over the course of my daughter’s young life.

    I want it where if anything happens to the mother (unable to care for or death), that my daughter resides with me and that I get sole custody (not her grandmother or step father).

    I want half say in all major decisions such as medical procedures and other facets of her life.

    I want designated times in which I can speak with her on the phone, skype and any other conduit of our choice.

    Do I have a shot?

    Thank you for your time…warmly,

    Chris

    • The visitation that you are asking for is absolutely sensible. Probably, a German court would prefer the visitation to take place in Germany, but if it works out well on several occasions, I see no reason why your daughter shouldn’t be allowed to visit you in the US.

      A sensible court order on visitation would of course also include telephone/skype times as long as you live in different countries.

      In order to have a say in all major decisions, you would need to file for joint custody, as I have outlined in the article above.

      If the mother will become incapable of exercising custody, you should become the custodial parent unless the welfare of the child requires otherwise: § 1680 II, III BGB. Because your daughter is already 8, a lot will depend on what opinion she will voice and on your relationship with her as well as any possible emotional relationship she has with her stepfather. The more contact you have with her, the better your chances are.

  13. motta says:

    First congrats for your great work. You help many people , especially children. My husband had a daughter who was born in Brazil , today she have 7 years old and lives in Berlin with her ​​mother, who is a German and was not married with my husband. When the baby girl turned one year he took her and the daughter back to Germany because it was the desire of the mother. Since then my husband visit her daughter about 3-4 times a year. Always he sends the money (according to dusseldorf table) and we lived in berlin during 9 months just to stay close to the girl. It turns out that the girl’s mother request child support and limits the father to see her and does not allow skype. When we travel from Brazil to Germany she usually limits visits and never allowed her daughter to come to Brazil (obviously accompanied by her) . However the mother already took the girl to canada without father’s permission. My questions are: Why is she asking for money if she ever receives via paypal? What is the correct frequency of visits? (the mother can not allow the father to communicate via skype for example?) What do you suggest to solve this situation? Thank you!

    • Because these questions relate to child support and contact/visitation, I would really like to keep them separate from custody law. Otherwise, too many things get mixed up which don’t have anything (or not much) to do with each other.
      I will put up similar FAQ on child support and contact/visitation as soon as somebody will mail me one or two of the books from my wishlist.

  14. Heidi Rudolph Imani says:

    Just wanted to know the process by which I can make the father tomy one year old child to support me . He lives in Germany while I’m in kenya I was made to understand that he is married in germany with a family.he works for a firm called neoplan that much I know.and I’ve all the prove that I’ve have been with him kindly your advice will be appreciated. Thanks
    Heidi

    • I’ll be happy to set up a similar list of FAQ on getting child support as soon as someone mails me one of the books from my wishlist to do so. But in your case, it sounds like you might need to establish paternity before. For another book, I’ll be happy to address that issue as well.

      • Carl says:

        How long does it take for the German courts to decide on a verdict for joint custody? What are he odds of a, let’s say American military member to receive joint custody even though he is soon to leave Germany? What sense does it make for the member to have joint custody if he isn’t in the country. The child would be from an unmarried couple .

      • It would make sense if you are currently already involved in the child’s life. Because then, having shared custody would enable you to move back to Germany in the future after you ETS. You could then get a residence permit based on having shared custody (if the child has German citizenship).

        The duration of such a proceeding depends very much on the kind of opposition put up by the mother.

  15. Carl says:

    So what would the average time be for the jury to decide? 2 months? 3 months? Let’s say the mother opposes and the court hears her plea, how long then? How long then until he jury/judge decide?

    • There is no jury. It’s only a judge.

      I have no idea on the average time and I also don’t see what the information would help, because how do you know if your case is an average case pending with an average court before an average judge with an average workload? Obviously, the sooner you start, the sooner it will be finished. But on the other hand, you don’t want to file anything before you have a solid case.

      I am sorry, but you’re going to court, so it depends very much on the specific case. Average ain’t help nobody.

  16. Rahaf says:

    Hello Sir
    I want to know what a two year child born in Germany and has the German nationality
    Could give ( rights ) to his foreign mother . Considering two factors ;
    The father has the german nationality
    The parents are married , but there’s a big possibility of facing a divorce
    So in case of a divorce , does the german child give any rights to his foreign mother ( foreign = does not have the german nationality)
    What can the mother do in this case to protect her rights?

    • Do you mean custody rights or the mother’s right to stay in Germany? What citizenship does she have?

      • Nathalie says:

        She is libanese
        And I would like to know a bout both
        Custody rights and her rights to stay in Germany , if possible
        Thank you

      • You find more about child custody in my FAQ on child custody. Generally, shared custody would be maintained in the case of a divorce, unless there is a compelling reason to withdraw custody from one of the parents. The breakup of the marriage is no such reason because father and mother will remain father and mother even if they are no longer husband and wife.

        As long as the mother maintains at least shared custody and spends some time with her child, she will be able to base a residence permit in Germany on that (§ 28 I AufenthG).

      • Nathalie says:

        Ok , but how long will she be responsible for the care of the child
        I mean the custody will complete u until what age of the child ?
        And the other question is :
        What help does the german government offer for the non working foreign mother of a German child ?
        The third question :
        When can the child give the foreign mother the citizenship?

      • Child custody applies until the child turns 18.

        The financial question depends on the age of the child and the financial abilities of both parents (even after the separation).

        German citizenship cannot be derived from a child. But of course the mother can apply for naturalization in Germany once she meets all the requirements. For more, see my FAQ on German citizenship law.

  17. Fred George says:

    Thanks for all that posted here – I go back to court next Thursday for better visitation rights for my 8 year daughter.. I have been living in Germany{American NYC} since her birth and only have her Tuesday afternoons and all day Saturday.. for the past 6 years ..The system is impossible and the Jungandamnt is useless and against fathers from the get go..
    By chance we have a new Judge so that will prove interesting..

    We live in Saarbrucken which is very much like Tennessee. I have been told to try and get a different city like Berlin where the Judges would favor the Father a bit more – but way to far away to pull this off..

    To all fathers just the best and the German system is ” not the best interest of the child” thru and thru

    Fred George

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