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.
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.
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
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
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
If minor children who live in Germany travel abroad without parental guidance or without their legal guardian, they may need a letter of agreement in addition to their own valid passport or ID card.
It is therefore advisable to provide an informal document signed by the parents, second parent or legal guardian(s), authorising the child to leave Germany.
This facilitates border control and prevents suspicion of unlawful child relocation.
The document should hold the personal data of the Minor (and the accompanying adult), a copy of the child’s birth certificate, the planned itinerary, contact details of the not travelling custodian(s) plus a copy of their ID.
Some countries demand a certification of the agreement and a proof of custody. It might be advisable to provide a translation into the language of the country of destination. Please contact the respective embassy for the precise requirements.
Child relocation: Germany
Right of custody
Under German law, the right to determine the child’s place of residence is part of the right of custody unless changed by a court order.
If a parent wants to relocate with a child (relevant distance at least 30 – 50 km) and the other parent does not consent, either parent can apply to the competent family court.
The court can transfer the right to determine the place of residence solely to one of the parents, if this is in line with the child’s best interest. The court will take into account the intensity of bonds to each parent and continuity thereof, geographical continuity, parenting skills in promoting the child’s overall development and in tolerating a good relationship to the other parent and to grandparents etc., and also the child’s will.
If one parent has reason to believe that the other parent intends to relocate the child within or outside Germany, he or she can apply to the competent family court to have a temporary injunction issued.
This can, for example, contain to
– have sole custody transferred to him or herself
– have the sole right to decide on the child’s place of residence transferred to him or herself
– have the sole right to decide on the child’s place of residence transferred to the Youth Welfare Office
– have the other parent barred from leaving the place of actual habitual residence with the child without the prior consent of the court
– officially request that the other parent hand over the child’s passport to the Youth Welfare Office, Police Station or court
– order that the actual habitual residence of the child be moved temporarily to a neutral institution
– have the “cross border alert” communicated to other countries in the Schengen area
– file an injunction to alert the federal border police and the Schengen authorities and for the Court to order a travel-ban.
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.
Child abduction from Germany to a state other than Germany
Prior to the entering into force of the Hague Child Abduction Convention, legal options for returning a child from a state to which it was abducted or where it was unlawfully withheld, were rather weak. This has changed significantly thanks to the Hague Convention.
Basically, the same principles apply as in abductions to Germany. The left-behind parent or legal guardian can either
1. directly address the Central Authority of the other state (some states demand the assistance of a lawyer),
2. or seek the help of the German Central Authority (the Federal Office of Justice in Bonn).
A lawyer who is based in Germany can help finding legal aid in the respective state.
States without international agreement
A special situation arises if a child has been abducted to a state which is not a member to any of the relevant international agreements. The content of the foreign law as well as the form of the judicial or official procedure can differ considerably from the procedure in Germany.
Help can be requested from the authorities or courts of he state in question. Lawyers or NGOs which are based in the country can be involved for support.
Some countries have designated a Central Contact Point for cross-border family conflicts which can provide certain assistance. The Federal Foreign Office and the Association of Binational Families and Partnerships may be able to provide information and support in relation to an individual State.
Another instrument is the international family mediation as conducted by the charity MiKK e. V. – Mediation in internationalen Kindschaftskonflikten (International Mediation Centre for Family Conflict and Child Abduction).
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
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):
Federal Office of Justice – Central Authority for International Custody Conflicts: https://www.bundesjustizamt.de/EN/Home/Home_node.html
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:
Central Contact Point for Cross-border Family Conflicts and Mediation:
MiKK e. V. – International Mediation Centre for Family Conflict and Child Abduction: https://mikk-ev.org/
German Association for Public and Private Welfare
Association of Binational Families and Partnerships (in german only):
Blogs about 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 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. 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 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 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...