Parental care and contact are part of parental responsibility alongside maintenance obligations. Parental care is the joint duty and right of parents to care for their minor children. Parental custody is indispensable and non-transferable.

But who is entitled to custody?

It depends. Either:

• The married couple: Parents are entitled to joint custody if they are married to each other at the time of the birth of their child, Section 1626 (1) BGB. If the marriage takes place after the birth of the child, joint custody exists from the time of the marriage, § 1626a Para. 1 No. 2 BGB;

• Or both parents after a joint declaration of custody: If the parents are not married, the parents can still declare that they wish to assume joint custody, § 1626a Paragraph 1 Number 1 BGB. These declarations can also be made before the child is born and must be made in person, publicly notarized and not subject to any conditions or time limits.

• Otherwise the mother: If unmarried parents do not make a declaration of custody and there is no family court decision regarding joint custody, the mother is entitled to sole parental custody, Section 1626a (3) BGB.

What does parental custody involve?

Parental custody concerns personal and financial custody as well as the representation of a child.

• Personal care: This includes the care of the child, i.e. the care of its physical well-being and healthy external development as well as its upbringing, i.e. the care of its mental, social and emotional development.

• Asset custody: This includes the preservation, increase and use of assets in the interests of the child and also includes the right to take possession of the child's assets.

• Representation: The legal power of representation of the parents corresponds in its scope to the custody of persons and property. Parents exercise custody jointly and represent the child jointly, Section 1629 (1) sentence 2 BGB. If a declaration of intent is to be made to the child, each parent is authorized to represent the child alone. The parents can authorize each other to represent them. However, sole power of representation naturally exists if one parent exercises parental custody alone and the decision on the issue in question has been transferred to him/her alone and in the event of imminent danger (Section 1629 (1) BGB).

What are the effects of separation or divorce?

In principle, separation and divorce do not lead to the termination of joint parental custody.

However, it is important that the dissolution of the domestic partnership also leads to changes in custody:

• If the parents are separated, their agreement is only required in matters that are of considerable importance for the child.

• In other cases, the parent with whom the child usually resides with the consent of the other parent or on the basis of a court order decides alone (Section 1687 (1) BGB).

How do I obtain sole custody of my child?

This is done at the request of one parent if the other parent agrees, Section 1671 (1) no. 1 BGB. However, the court is not bound by this application if the child has reached the age of fourteen and objects to the transfer or if the child's welfare is endangered by the transfer, Section 1697a BGB. Sole custody can be transferred without the consent of the parent concerned if the termination of joint custody and the transfer to the applicant is in the best interests of the child. The family court can also intervene ex officio without an application from a parent in order to respond to a risk to the child, Section 1666 BGB.

Right of access

A child has a right to contact with each parent. Each parent is obliged and entitled to have contact with the child, § 1684 BGB. This contact takes the form of temporary contact.

This includes:

• Joint weekends;

• Visits;

• Travel;

• Vacation stays;

• (Video) phone calls, e-mails, letters.

The family court can regulate the scope and manner of exercise upon application, Section 1684 (3) sentence 1 BGB. However, if it is necessary for the child's welfare, the family court can also restrict or exclude the right of access, Section 1684 (4) BGB. For example, the possibility of accompanied contact in the presence of third parties willing to cooperate is conceivable, Section 1684 (4) BGB.

If you are in the process of breaking up with your partner or are already separated or divorced and are now worried that you will not be able to find a common denominator because of your child's custody and access rights, please contact us.

We will inform you of your rights and obligations and, if necessary, enforce them for you in the family court. However, you are also welcome to contact us with any other issues relating to custody and contact law.