How can your prepare child relocation from or within Germany? What if your child has been relocated without your consent?
Germany is part of Europe. The judgments of the European Court of Justice apply. And the Council Regulation (EC) No 2019/1111 of 29 June 2019 (Brussels II ter) is valid in Germany. Germany is a member of the Hague Convention on Child Abduction. Furthermore, Germany a Schengen country, which means that people can travel freely within those countries.
We will explain to you what that means for your options.
Lawyers and mediators in Germany
We provide a list of lawyers and mediators in Germany who can assist you in drafting an international parenting plan, in preventing conflicts over the primary residence of the children, and in negotiating and litigating over the children in the event of relocation or child abduction.
Parental authority: Germany
If a child is born of a marriage, both parents automatically have joint custody of the child (section 1626 of the German Civil
Code). Otherwise, only the mother gets automatic custody. The parents need to agree on joint custody and this must be notarially recorded and send to the Youth Welfare Office, 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 courts then order joint custody if this is expected to be in accordance with the best interests of the child.
Same sex couples
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.
Traveling with children: Germany
In all EU countries, in addition to their own valid passport or ID card, all children travelling, who are travelling alone or with adults who are not their legal guardian or with only one parent, may need an extra (official) document signed by their parents, second parent or legal guardian(s) authorising them to travel.
There are no EU rules on this matter, each EU country decides if it requires the child to have an official authorisation from their parent(s) or guardian.
Child relocation: Germany
In Germany, the right to determine the child’s residence is part of the custody right unless changed by a court order.
If a parent wants permission to relocate with a child, the court will make the decision that is in the best interest of the child. The court will not forbid a parent to move, because the court can only make a decision about the child. The court can decide to transfer the right to determine the residence of the child to the other parent.
If the court has to decide in a relocation case, the court can take the following factors into account:
- personal continuity
- geographical continuity
- parenting skills
- tolerance regarding a good relationship between the child and the other parent
- the ability to promote the child’s personal skills
- the child’s will.
If the other parent does not agree with the planned relocation of the child, he or she should ask the court to transfer the rights to determine the residence of the child to him or her.
Child abduction: Germany
Germany is a party to the Hague Convention on Child Abduction. The obligations that the convention creates are elaborated in the Act to implement Certain Legal Instruments in the Field of International Family Law (International Family Law Procedure Act – IFLPA).
The Central Authority in Germany is the ‘Zentrale Behörde‘, part of the Bundesamt für Justiz.
The German Central Authority will contact the abducting parent and ask him or her to volutarily return the child or to participate in mediation. In order to safe time, the Central Authority will in principal send this letter to the abducting parent at the same time as the application for a return order is filed with the court, with the intention that the application can be withdrawn if the mediation is succesfull or if the abducting parent volutarily returns the child. If the applicant wishes to first wait for the reaction of the abducting parent before starting the court procedure for a return order, this is also possible. The are several measures available to locate the child, among which court orders to compel the production of information on the whereabouts of the child.
In Germany you can only start a procedure to obtain a return order when you know where the child is staying, because court venue depends on location of the child.
The German Central Authority is the legal representative by operation of law and files the application with the court. Thereafter the Central Authority assigns a private lawyer to represent the applicant at the court hearings.
If the child has been abducted from an EU country, based on article 11 (3) of the Brussels IIa Regulation, the court shall issue it’s judgment no later then six weeks after the application is lodged. In cases concerning children from other countries the court usually also decides within 6 weeks. Usually there is only 1 hearing.
There is only one appeal possible and the appeal and it’s grounds must be filed within 2 weeks. According to section 40 subsection 2 of the International Family Procedure Act the right of complaint against a decision ordering the return of a child shall vest only in the person opposing the application, in the child, so far as he or she has reached the age of 14 years, and in the Youth Welfare Office concerned. A return order is automatically suspended pending an appeal. The appeal procedure can take upto 3 months.
In Germany whether or not a child can talk to the judge or a guardian ad litem depends upon the particular case and is always at the discretion of the judge hearing the case. According to Section 159 of the Act on Proceedings in Family Matters and in Matters of Noncontentious Jurisdiction the court has to conduct an in-person hearing with the child in order to get a personal impression of the child. However, if there are severe reasons for an exception or the child is incapable to express his or her will or his/her will is irrelevant, the court can refrain from hearing the child. In practice, in child abduction cases, the judges have child intervieuws with very young children, even children of 3 years old. The child is heard by the judge on that day and immediately before the hearing. German family courts generally dispose of appropriate rooms with toys and a child-friendly atmosphere, and family judges are
hearing children on a regular basis. They will often also have received training by child psychologists. In return proceedings the appointment of a guardian ad litem is common practice in Germany.
According to Art. 21 and Art. 26 of the Brussels II b Regulation (EU 2019/1111) which will enter into force as from the first of August 2022, the courts of the Member States shall provide the child who is capable of forming his or her own views with an opportunity to express his or her views.
The possibility of mediation is offered to the parents. The mediation can by organized by MiKK, International Mediation Centre for Family Conflict and Child Abduction. MiKK advises parents from all over the world and organizes co-mediations for parents both in Germany and abroad. The mediators of the International MiKK Mediators Network are based in 30 countries offering mediations in 30 languages. The co-mediations are conducted by a male and female mediator, one of whom has a legal and the other a psychological/social or education background. Furthermore, the co-mediators speak the parties’ common language as well as their respective mother tongues. In addition, they come from the same countries as the parties, so have indepth knowledge of the parties’ respective culture involved. The mediators are qualified not only by their mediation training and experience, but also by a specialized advanced 50-hour Cross-border Family Mediation training (CBFM) on the complexity and the specific circumstances surrounding international child abduction proceedings and the legal issues involved.
This training was originally developed and piloted in the EU Civil Justice project in 2010. The bi-lingual, bi-cultural mediation model was originally developed within a German-French pilot project on mediation. In a German-Polish pilot project on mediation this mediation model was further refined by German mediators (MiKK) and Polish Mediators (DOM) establishing the so called “4 B mediation model”, i.e. bi-professional, bi-gender, bi-lingual and bi-cultural co-mediations.
If the abducting party does not return the child by the time fixed by the court, the court orders that the child has to be handed over to the applicant so that he or she can return the child. If the abducting party returns the child he or she normally pays the travel costs. In case the abducting party does not return the child by the time fixed by the court and the court orders that the child has to be handed over to the applicant, the court can also order that according to Article 26 paragraph 4 of the 1980 Hague Child Abduction Convention the abducting party has to reimburse the travel costs relating to the return of the child.
The court can impose a coercive fine, and in the event of such fine not being recoverable, the court can order coercive detention. Where the imposition of a coercive fine offers no prospect of success, the court can order coercive detention (section 44 subsection 1 of the International Family Procedure Act and section 89 subsection 1 of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction). Immediately along with the issuing of the return order the court indicates that it has the power to grant coercive measures if the obligated parent does not comply with the return order (section 89 subsection 2 of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction). In case of non-compliance with the return order, the court will then order these measures.
To ensure the safe return of the child the German Central Authority can inform the other Central Authority and ask it to inform
the competent authorities in the other State (e.g. child protection bodies). Another channel that is sometimes used is direct judicial communication with or without the assistance of liaison judges. If the safety of the child is seriously at issue, German courts would often require protective measures to be already in place before the return order is made – or at least before the child is actually returned to the other State.
If you think your child is in Germany, but you do not know exactly where, the German Central Authority can help you locate your child.
If you fear that your child will be abducted from Germany to another country, or otherwise disappear from view, various measures can be taken:
- child’s passports to be deposited with authorities
- alleged abductor’s passport to be deposited with authorities
- obtain orders to prevent the removal of the child
- issuing border and/ or port alerts
- requiring the alleged abductor to report periodically to authorities
- requiring the alleged abductor to pay a
bond / deposit
- temporary placement of child in institutional care
- request the competent foreign consulate not to issue new passports for the alleged abductor and/or the child.
The Central Authority offers free legal aid it the applicant qualifies for free legal aid. Usually the Central Authority provides the applicant with the application form for legal aid. Additionally, the form and an instructions leaflet are available on the website. The legal aid form is required in German and in original and must be signed and dated by the applicant. If the applicant does not comply with the requirements for legal aid the Central Authority asks the applicant for an advance deposit before initiating judicial proceedings.
Criminal law : Germany
The abduction of minors is punishable on the ground of section 235 of the German Criminal Code. An application by the person who’s parental rights have been infringed is necessary for criminal prosecution. An exception to this rule can be made if the public prosecutor considers it necessary to intervene for special reasons of public interest.
Relevant websites : Germany
Act to Implement Certain Legal Instruments in the Field of International Family Law
(International Family Law Procedure Act – IFLPA)
www.mikk-ev.de : MiKK International Family Mediation Specialists
www.bundesjustizamt.de : Federal Office of Justice
Central Authority for International Custody Conflicts
Blogs about Germany
Mediation in Germany
Mediation in Germany In cases of child abduction or disputes about child relocation, mediation can be an efficient, fast en less expensive way to settle the dispute. During al stages of the abduction court procedure there is the option to start mediation. The law in...
Child interview in Germany
Child interview in Germany Child participation In Germany whether or not a child can talk to the judge or a guardian ad litem depends upon the particular case and is always at the discretion of the judge hearing the case. According to Section 159 of the Act on...
Relevant case law : Germany
Return to Madrid ? No, to Spain.
Return to Madrid ? No, to Spain. Koblenz Higher Regional Court, Germany 11 March 2020, 13 UF 67/206 The child was born in Trier, Germany, in March 2018. In May 2018, the father acknowledged paternity of the child. In early July 2018, the family moved to Spain and from...
Enforcement: 10 days of coercive detention
Enforcement: 10 days of coercive detention 25 June 2020, 2 UF 200 19 (Bes. Haftbef.) The mother had been ordered, to return the children (one born in December 2015, the other born in August 2017) to the U.S.A. Her complaint appeal against this was rejected by way of a...
Return order, but not to the father
Return order, but not to the father Karlsruhe Higher Regional Court, Germany 8 January 2010, 2 UF 172/09, The accusations made against the father were not held to be proven. However, the Appeal Court opted for a 'graduated return order' instead of ordering an...