Germany

How can you prepare child relocation from or within Germany? What if your child has been relocated without your consent?

We will review the most important legal questions and options for you. Please find a list of helpful websites at the end of this text.

Legal framework

Germany is a member state of the EU and a Schengen country.
The sphere of international family law is subject to the following regulations in Germany:

1. Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility, and on international child abduction – referred to as: Brussels II b Regulation.

2. The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (Federal Law Gazette 1990 part II p. 207) – referred to as: Hague Child Abduction Convention.

3. The Hague Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (Federal Law Gazette 2009 II p. 602) – referred to as Hague Child Protection Convention.

4. The Luxembourg European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (Federal Law Gazette 1990 II p. 220) – referred to as European Custody Convention.

Country Reporter:

Andreas Hanke

Andreas is an experienced family lawyer in Berlin and a member of the International Academy of Family Lawyers (IAFL).

He has expertise as counsel in complex international family law cases (including US- and Canadian family law).

Andreas has volunteered to keep this page about Germany up to date.

Lawyers and mediators in Germany

Parental authority: Germany

Right of Custody

If a child is born of a marriage, both parents automatically have joint custody of the child (section 1626 of the German Civil
Code – as default). Otherwise, only the mother gets automatic custody.

If not married, the parents need to agree on joint custody. The agreement must be notarized and sent to the Youth Welfare Office in order to obtain joint custody (section 1626a of the German Civil Code). If the parents do not agree, the parent without custody can request the family court to order joint custody. The family court will decide in accordance with the best interests of the child.

Same sex couples and surrogacy

In Germany the only option for a co-mother to get custody is to adopt the child. The German law does not allow surrogacy and does not give a possibility to get parental authority to parents who have their children delivered by surrogate mothers abroad. A judicial decision from another state, granting German “parents” legal parenthood over a child born by surrogacy, might be acknowledged by German authorities, if at least one of the “parents” is genetically related to the child, while the surrogate mother is not.

Traveling with minor children: Germany

Child relocation: Germany

Child abduction: Germany

Child abduction by one parent against the will of the other parent is considered a criminal offense under section 235 of the German Criminal Code (§ 235 StGB).

If a parent leaves Germany with a child who has so far been resident there, violating the right of custody of the other parent, different legal measures are available. If a child has been abducted and taken to Germany, generally the same principles apply. In most cases, the nationalities of the child or the parents do not play a decisive role.

Claiming a case of child abduction can be an important element in the broader context of custody questions.

Child abduction from another country to Germany

The most prominent instrument in cases of child abduction is the Hague Child Abduction Convention. Other legal regulations will be explained as well.

Hague Child Abduction Convention

The motivation behind the Convention is to prevent parents from arbitrary establishment of jurisdiction in another state. Therefore, its main objective is to ensure the quick return of a child after an unlawful cross-border relocation (restoration of the status quo ante), section 12 of the Convention. This does not include custodial decisions. In fact, for the duration of a pending abduction case no German court may decide on matters of custody.

Every Contracting State to the Convention has to appoint a Central Authority to facilitate and ensure return proceedings (section 6 I of the Convention). In Germany, this is the Federal Office of Justice in Bonn.

The left-behind parent or other legal guardian can either
– address the entitled Central Authority of the state from which the child was abducted,
– retain an internationally experienced attorney in Germany,
– or directly seek the help of the Federal Office of Justice. This Office can provide quick access to the competent foreign authorities. It is authorised to initiate judicial or extrajudicial measures in Germany to bring about the return of the child. Thereafter the Central Authority assigns a private lawyer to represent the applicant at the court hearings.
– Also, an application for return can be made at the competent German family court.

For the sake of quick results, it is advisable to immediately appoint a lawyer who will additionally involve the Federal Office of Justice for specific administrative aid.

If you consider an application under the Abduction Convention, it will most likely be successful if
– you had the right of custody or at least joint custody at the time of the removal (note: the right to determine the child’s place of residence is not sufficient at this point)
– you have exercised your right of custody until that point in time
– the child’s place of habitual residence was in the state where the applicant parent/legal guardian lived immediately prior to the abduction
– the abduction has violated your right of custody and was done without your consent
– the abduction took place less than a year ago
– the child is not yet 16 years of age at the time of the court decision
– the Convention was in force between Germany and the relevant State at the moment of the abduction.

Various legal disputes can arise in the matter, for example with regard to the violation of the right of custody, the unlawfulness of the abduction, the place of habitual residence, or if the applicant moves in the course of a pending case. The abducting parent may argue that the return of the child poses physical or emotional danger or is otherwise contrary to the child’s best interest.

Once these material questions are settled, the German court shall decide within six weeks after the application (principle of acceleration, section 11 II of the Convention). This pays credit to the high interest of an immediate restoration of the status quo ante.

A return order enters into legal force and can be executed, unless an immediate appeal is lodged within two weeks. The opposing parent, the youth welfare office and also the child itself (if 14 years or older) may file an appeal, causing the return order to be pending.

However, the court can order the immediate execution of its ruling even prior to two weeks, if the child’s best interest would otherwise be seriously endangered. To secure the enforcement of the return, the court is entitled to use coercive payment or detention, and even direct compulsion.

These instruments must be understood as ultima ratio. The goal is to take all appropriate measures to secure the voluntary return of the child (Section 10 of the Convention) and not to create additional tension for any of the involved family members. Appropriate measures may include “undertakings” (guarantees given by the left-behind parent) or “safe harbour orders” to encourage the voluntary return of the child by the abducting parent.

Section 26 of the convention states that in general each party to the proceedings covers their own costs. Depending on the particularities of each case (i.e. national laws with regard to litigation rates and cooperation of the abducting parent) the court may require the payment of the expenses incurred in implementing the return of the child, Section 26 II – IV of the Convention.

Brussels II b Regulation

The Regulation applies to relations between Member States of the European Union with regard to cross-border matrimonial matters and matters of rights of custody. It has a similar range of effectiveness than the Hague Child Abduction Convention, plus it can facilitate the enforcement of court decisions. The return of the child can take place via cross-border enforcement of the decision of a competent domestic court.

Furthermore, the Brussels II b Regulation holds protection measures following the return, should this be necessary. It grants access rights and hearings during return proceedings.

For more details: check the country profile of Germany on the website of HCCH.

Criminal law : Germany

Relevant websites : Germany

Travel consent form (also in other languages): https://www.adac.de/reise-freizeit/ratgeber/reiserecht/reisevollmacht-kinder/

Children travelling without a parent – general information (in german):
https://www.auswaertiges-amt.de/de/service/fragenkatalog-node/11-kindohneeltern/606308)

Federal Office of Justice – Central Authority for International Custody Conflicts: https://www.bundesjustizamt.de/EN/Home/Home_node.html
and: https://www.bundesjustizamt.de/EN/Topics/FamilyMattersInternational/Custody/Return/Return_node.html#AnkerDokument44366

Hague Child Abduction Convention: Contracting States in relation to Germany: https://www.bundesjustizamt.de/EN/Topics/FamilyMattersInternational/Custody/States/States_node.html

Hague Conference on Private International Law: https://www.hcch.net/en/states/hcch-members

Federal Foreign Office – general information on child abduction:
https://www.auswaertiges-amt.de/en/visa-service/konsularisches/kindesentziehung-node

Central Contact Point for Cross-border Family Conflicts and Mediation:
https://zank.de/en/

MiKK e. V. – International Mediation Centre for Family Conflict and Child Abduction: https://mikk-ev.org/

German Association for Public and Private Welfare
https://www.issger.de/en/home/home.html

Association of Binational Families and Partnerships (in german only):
https://www.verband-binationaler.de/beratung/infos-fuer-ratsuchende

Blogs about Germany

Relevant case law : Germany