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“Parental responsibility” means all the rights and obligations of the parents in relation to a child. An essential part of parental responsibility is parental custody. Parents have an obligation and a right of custody for their under-age children. This covers caring for the child managing its property, its acting as representation. Parental responsibility also includes rights of access and the obligation of maintenance in relation to children.
Parents have a joint right of custody if:
Custody declarations must be authenticated by the Youth Welfare Office (Jugendamt) or by a notary. If parents do not make a custody declaration and are not married, the mother has sole custody.
Under German law both parents' access to the child is deemed, as a general rule, to be in the child's best interests and, consequently, the child’s right of access to the parents is guaranteed. Both parents are entitled and obliged to have access to the child.
The right of access gives the parents the right to see and speak with the child at regular intervals. Access includes contact by letter and phone as well as personal contact.
The obligation of maintenance covered by the right of custody is incumbent on both parents. Parents can themselves decide how they will care for their children until they are married. They may, for instance, decide that maintenance will take the form of care in kind in the family home (board and lodging, clothing, etc.).
If the parents do not live together, the parent with whom the child is living contributes, as a general rule, to maintenance by caring and bringing up the child. He/she is not expected to make a financial payment. The other parent is, however, required to make a financial contribution.
If the parents are unable to exercise parental responsibility or the parents do not have the right to represent an under-age child or his property, a guardian will be appointed. This requires an order by the guardianship court.
If parents have joint right of custody and split up, they may continue to exercise this joint right of custody irrespective of whether they are married or not.
However, one parent may apply to the family court for sole right of custody. The court will agree to such an application if the removal of joint custody and transfer of custody to one parent is in the child’s best interests.
Even if parents divorce, such a decision will be granted only on application by one of the parents. If no application is made, parents will continue to hold joint custody.
As a general rule, the way in which parental responsibility is exercised is left to the parents' discretion and is not prescribed by regulation. If the parents do not live together, they may apply to the Youth Welfare Office to work out a mutual solution on how to care for their children. This can serve as a basis for a decision by the courts on parental responsibility. If the parents agree that in the future custody is to be held by only one of the parent, they may apply for an order to the family court.
Parents may also agree informally between themselves on access rights. If such an agreement is made before the courts, it is binding in the same way as a judicial decision and, if it is approved by the court, judicial enforcement will be available in appropriate cases.
If the parents cannot resolve their conflicts themselves, they can apply to the Youth Welfare Office or an agency which deals with young people. They will advise parents and help them come to an arrangement. A database containing details of all advice centres can be found at www.dajeb.de . Mediation services are available to help parents reach an amicable arrangement. More information on family mediation can be found at www.bafm-mediation.de .
The judge can decide on parental custody of a child, access rules, and return and maintenance obligations. The court can also order any measures which are required to protect the child’s best interests.
Yes. The parent who does not have custody has no right to decide on matters relating to the child. He/she does, however, have right of access to the child and can require information from the other parent about the child's personal circumstances if a justified interest can be proved.
If parents have joint custody of a child and live together, they must come to a mutual agreement on all matters relating to the child's custody.
If the parents do not live together, they have to reach agreement solely on matters which are of significant interest to the child. The parent with whom the child resides has the sole right of decision on matters concerning day-to-day living.
The family courts (sections of the district courts) are usually responsible for proceedings relating to parent custody (responsibility). Applications can be registered with the registry of the relevant court or that of a district court. Parents only have to be represented by a lawyer in exceptional cases, e.g. in applications under divorce proceedings. It is impossible to say what documents have to be attached as the courts decide in each individual case which documents are required.
If parents are not married at the time the child is born, the parent or official of the Youth Welfare Office can authenticate a custody declaration (for joint parental custody).
The so-called ex officio inquiry (Amtsermittlung) principle applies in proceedings concerning parental responsibility. This means that the court is entitled and obliged to carry out inquiries to establish the facts on which it will base its decision according to its official discretion and without having to rely on the parties concerned submitting the evidence it considers necessary.
Interim measures may be obtained in such principal proceedings, both were an independent action is brought and where in relation to divorce proceedings are already in motion.
Any citizen who cannot meet the costs of the proceedings or can only meet some of them or only in instalments because of his/her personal and economic circumstances may apply for legal aid in relation to proceedings before the civil courts. This is conditional on the intended action or defence having sufficient prospect of success and not being vexatious. The intention here is to ensure that people with limited incomes also have access to the courts. Legal aid covers - according to a person's income - all or part of his/her contribution to the legal costs and his/her lawyer’s costs.
Appeals can be lodged against decisions on parental responsibility in main proceedings. It is irrelevant whether the proceedings have been initiated in relation to parental responsibility (in which case temporary appeals may be lodged) or are ancillary to divorce proceedings (which can be appealed).
In both cases appeals must be lodged within one month of a decision being handed down.
Interim measures may be sought by means of an immediate appeal in oral proceedings. However, in this case, the appeal must be lodged within two weeks. Interim measures may also be set aside by other rulings.
A child cannot be returned – under access rights – by the use of force. Where the return of a child to a parent is enforced, the use of coercive measures by the bailiff is allowed. As a general rule, the court must give prior warning that force might be used or that the person concerned faces imprisonment if the child is not returned.
Decisions taken in another Member State on parental responsibility are recognised in Germany under Regulation (EC) No 1347/2000 without any special procedure.
Before a decision on parental responsibility in another Member State can be enforced in Germany, it must be declared enforceable under a special procedure in accordance with the Regulation, i.e. admitted for enforcement in Germany. An application for an enforcement order is required. This must be made to the local family court in accordance with the Regulation of the regional court. A copy of the decision and a certificate from the court of the Member State of origin must be attached to the application. The person concerned does not have to be represented by a lawyer. A decision is taken by the family court under proceedings initiated by one side without an oral hearing. Appeals against decisions by family courts have to be made to the regional courts. Appeals against decisions by the regional courts have to be made to the Federal Supreme Court. Regulation (EC) No 1347/2000 is replaced with effect from 1 March 2005 by a new regulation on parental responsibility. The new regulation provides for certain decisions on right of access and judgments ordering the return of a child to be enforced without a prior enforcement declaration.
As a general rule, you should apply to the family court of the regional court within whose jurisdiction the applicant or child concerned resides to oppose a decision on parental responsibility.
Parental responsibility is governed by the law applying in the place where the child resides (Article 21 of the German Introductory Act relating to the Civil Code (EGBGB)) unless the 1961 Convention on the protection of minors applies.Top
Last update: 28-12-2006