EXPLAINED: How does shared custody after divorce work in Germany?

In the latest statistics from 2022 Germany registered 137,353 divorces, according to the latest data from the Federal Statistical Office. That represents nearly a four percent fall year-over-year from 2021. Except for 2019, the number of divorces in Germany has been on the decline since 2012.

Of these divorces a little more than half impacted children. In total, nearly 116,000 children were affected by their parent's divorce,  Statistical Office noted.

Here’s how Germany considers child custody in divorce situations. 

What does the law say when one parent is an immigrant?

The citizenship of the parents plays no role in joint custody decisions. However, when parents are dealing with custody and residence issues like not having permanent residency or German citizenship, a child’s right of residence may be taken into consideration.  

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How is custody decided in Germany?

In Germany both fathers and mothers enjoy the same rights, so as a general rule, joint custody continues after separation and divorce. In fact, in nearly all cases of parents divorcing in 2013 (93 percent), joint parental custody was awarded. 

Sole custody is rarely granted in Germany. Parents must apply for sole custody under Section 1671(1) of the German Civil Code. Still, it is only granted under exceptional circumstances like when a parent has a severe drug addiction or is otherwise unable to fulfil their parental duties. It is important to note that parents living in different cities or locations are generally not seen as a reason to award sole custody. 

German law also distinguishes between the parent who has visitation rights and the parent whose home the children live in. The parent who does not live with the children full time, as a general rule, must pay child alimony. The payments will help cover all the child’s living requirements, including the cost of education.

What do judges consider?

When deciding on custody, German courts consider several factors. According to family law experts at Schlun & Elseven Rechtsanwälte, those include:

• The parent’s ability to care for the child and involvement in the child’s education, healthcare, and other aspects of their life.
• The child’s relationship with each parent.
• Stability and continuity in the child’s life.
• The child’s proximity to quality education, extracurricular activities and social engagements.
• Parents’ ability to communicate and work together when making decisions for the child.
• Any history of abuse, neglect or domestic violence.

It is important to note that judges can also consider the child’s wishes and opinions depending on their age and maturity level. This normally becomes a consideration once the child reaches 14. 

What responsibilities do custody holders have?

Like when couples were married, shared custody requires parents to make decisions on all important matters pertaining to their child together. Some of the decisions covered by custody include:

• Selecting and enroling children in a Kita (daycare) or school
• Determining the place of residence
• Consenting to medical treatment
• Deciding religious education

Can joint custody holders leave Germany with their children?

In short, it’s complicated. Joint custody holders cannot decide where their child lives without the consent of the other parent. That remains true regardless of if the trip would be for a holiday break or a permanent relocation. However, if parents decide that holiday trips are included under “daily decisions” then an exception can be made and the other parent’s approval is not necessary.  

Be sure to keep a written agreement to ensure the arrangement is recognised in case of future conflict. It is also worth noting that a child needs written permission from the other parent when leaving the country with just one parent. This rule also applies to married couples. 

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Is it possible for parents with joint custody to move abroad with their child permanently?

Yes, but only if both parents agree. Parents will need a court order from the family court, if they intend to move abroad with their children against the other parent’s wishes. Otherwise, taking the child to live abroad is permissible if the parent has sole custody or the right to decide residency.

German law also makes no distinction between moving abroad and moving to a different state in Germany. Still, it is fairly common to allow a parent to relocate with their child. 

It is important to note that moving abroad without the other parent’s consent is considered child abduction which is a criminal offence that could lead to a prison sentence of up to five years or a fine. 

What rights do children have in shared custody arrangements?

Kindschaftsrecht, or children’s rights, regulates the relationship between children and parents in Germany. This law requires parents to include their children in decisions that impact them. For instance, at 15 children can decide their religion. This law also grants children some rights in custody proceedings once they have reached a level of maturity to participate in court disputes. 

How are immigrant parents impacted when they no longer have custody of their children?

All immigrants need a residence permit to live in Germany. For parents who were issued residence permits because they have children with German citizenship or a German residence permit, it is not a requirement to leave Germany immediately–even if they lose custody of their child. 

The immigration office will take into consideration how you care for your child when deciding if they will extend residence permits for parents in this situation. This care can include:

• Seeing your child. 
• Paying child support.
• Proving there is a relationship between you and your child. 

If the office suspects that the parent does not meet these requirements, then they could be at risk of losing their right of residence in the country.