Advice on litigating a child custody case in Germany

I received this question about child custody in Germany and some related matters:

Hello,
I am an American living abroad in Germany. 5 months ago I married an Estonian man and gave birth to our daughter. Due to a series of unfortunate events we are now in the process of divorcing and he has threatened to have people lie in court that I abuse our child to have her taken away from me. He is often rough with our daughter and I had, on many occasions, needed to take her away from him for fear he would hurt her. Our daughter has a serious heart condition and requires frequent medical care and medication daily. I am afraid that when we go to court over custody he will win and not provide the care she needs. As the mother, what are my legal rights in terms of sole custody in Germany? And what may be the best way that I can proceed with my case? Additionally, he refuses to get her any type of documentation and so she remains undocumented in all countries and I am worried about how this might effect the custody case.

Because this is quite a standard situation and these questions come up again and again, I will publish the answer here as well, which supplements my FAQ on child custody law in Germany:

Your rights as the mother are exactly the same as those of the father. You are both parents, you both decided to get married and be parents together, and you both have shared custody until a court decides otherwise.

Only a family court in the country in which the child lives (Germany) can change custody and award sole custody to one parent.

The mutual allegations won’t carry much weight with the family court because (a) the courts hear these allegations all the time and can usually tell if something is made-up or not, (b) a custody case is a forward-looking case, i.e. the court is more interested in the future and who will be the better suited parent in the future, (c) you picked your husband and he picked you as his wife, so if you are now portraying each other as monsters, it will fall back on both your ability to exercise judgment.

I don’t quite understand what you mean with documentation. When your child was born, you must have received a birth certificate. It should be registered at the local Standesamt. If not, you should go there and do that. If you don’t have a birth certificate, just ask for another copy to be printed.
If you mean passports, then ultimately you would need to go to court to get permissions to apply for passports of the child alone if he continues to refuse any cooperation. But unless you want to travel soon, that’s not urgent. Keep in mind also, that all involved countries (Germany, Estonia and the USA) are members of the Hague Child Abduction Convention, so that none of you can remove the child from Germany without the consent of the other parent.

The family court will most likely try to find a solution for shared custody because a few months into the life of the child, it’s too early to tell who will be better suited as a parent. If you are a responsible and caring mother, I don’t see any risk of you losing custody, really.

A good way might be to go to the Jugendamt (Child & Youth Services) and ask them for mediation. It usually is not successful, but this way you document your willingness to cooperate, and they will document both your ideas and characters and will testify in court. As professionals, their testimony will weigh much more than that of some friends of your husband who suddenly pop up from nowhere.

It’s gonna be tough, but if you focus on showing that you are a good mother instead of bringing negative evidence against the father, you should stand a good chance.

child-custody-mountain-home

“I wish my parents had read Andreas Moser’s blog before.”

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About Andreas Moser

Travelling the world and writing about it. I have degrees in law and philosophy, but I'd much rather be a journalist, a spy or a hobo.
This entry was posted in Family Law, German Law, Germany, Law and tagged . Bookmark the permalink.

13 Responses to Advice on litigating a child custody case in Germany

  1. Esha says:

    Hi.i m 25 yrz old n i m non german women,married to german man..who was also not a german but change his nationallity by marrying a german laddy..i came germany 2 yrz ago..n now i have a 11months old baby..now i want to leave my husband.because he dont wants to live wid me..i want to know what are my rights now?he said he will take my daughter from me..i cant live widout my daughter..please i request u to tell me that i have any option or not?i dont know the german language also just a litl bit..please help me
    .please i really need it

    • You can leave your husband and stay in Germany. Custody between two separated parents would usually be shared and not taken away from either parent.

    • Esha says:

      Thanku..but the government will not ask me to leave the country?which first step should i take if i want to get seperat..

    • Don’t worry about immigration. Your child is German, so you can base your residence permit on exercising custody (shared custody is enough) for your child, § 28 I no. 3 AufenthG.

      Separation is not a legal process in Germany, it’s simply the act of moving out. You don’t need to file for anything or register anything or anyone’s permission. You are a free person in a free country. You simply pack your bag and go. (However, you will still have shared custody, so you shouldn’t move too far away which would prevent the father from having contact with your child.)

  2. Esha says:

    Thanku soo much..u just like an angel for me..so it mean i need a seperate home..do u know that the government will help me financially?what should i do..
    Thanku for helping

    • That goes more towards a personal consultation, which I cannot do for free. I charge 400 EUR for a full consultation, but you may also get a “Beratungshilfeschein” from your local Amtsgericht and find a local lawyer who will be paid by the government (although not as much).

  3. (c) was really good :-)

    • It’s a really good argument, particularly if people got married recently. I often used it in court when the opponent had portrayed my client as the worst person on the planet: “So why did you marry him and decide that he should be the father of your children?” When the judge smiled, I knew I had won.

    • true, but it’s common to (some) human nature: when people fall in love they only notice the nice traits in their partner and once/if the ‘honeymoon’ is over, they start to discover the less attractive traits of the chosen one.

    • One would therefore hope that they wait for a few weeks with producing children.

    • a few weeks :-)))

    • Silke Wahle says:

      Well, a lot couples would have never gotten married, if there were no children on their way. At most weddings I attended, the bride was pregnant. ;-)

  4. Anne Haefele says:

    As a mother who has been in this divorce, visitation, and Unterhalts process since 2014, I completely agree with this article. Ladies and gentlemen, it’s hard as hell but do your best to not get emotional in court. Basically, be a statue and stick to facts that you have evidence to support. Save your frustration and aggravation for trusted family and friends. Being emotional doesn’t help but actually is held in a negative light in the divorce proceedings. I would only invite the Jugendamt for mediation, only. They are not interested in anything but what’s best for the child. Do not disclose anything to them other than mediation in the best interest of the children. They will ask you about your life. Keep your answers positive and in the best interest of the children. They also do not receive criticism of the other parent as positive and disclosing your negative feelings to them will not reflect positive on you.

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