When a couple has children together, it must be clear who looks after them and to what extent. The question often arises in the event of a divorce. Unfortunately, however, unmarried parents also frequently find themselves in dispute over what is known as parental custody and contact (Sorge- und Umgangsrecht).

Lawyer Dr. Christina Schmidt is an expert in custody and contact law and advises you on all related questions with expertise, trust and discretion.

01 Parental custody

1.1. Parental custody of married parents

Where the parents are married, they generally have joint parental custody (gemeinsames Sorgerecht) of their children. They are required to exercise it by mutual agreement, with the child's welfare always in mind. This means the parents can only decide all important matters together and must reach an understanding with each other to do so. Parental custody consists of two parts:

  1. what is known as care of the person (Personensorge) of the child. This covers the child's care, nutrition, accommodation and place of residence, upbringing, healthcare and so on.
  2. what is known as care of property (Vermögenssorge). The parents must also look after the child's economic interests and take care of the child's financial affairs, assets and so on.

1.2. Parental custody on separation or divorce

A divorce does not change the principle of joint parental custody. As a rule, it therefore continues even after separation or divorce.

In this situation, however, couples often no longer get on well with each other. Disputes about matters concerning their children can arise quickly. Exercising custody by mutual agreement then becomes difficult. Sometimes the parents are unable to agree on anything at all.

Where only decisions of everyday life are concerned, this is not too serious. The parent with whom the child mainly lives may decide these matters without the other parent's consent. For example, that parent does not need to ask the other

  • what the child should have for lunch,
  • whose house the child goes to after school to play, or
  • which item of clothing to buy.

The position is different for matters of considerable importance. The parents must decide these together. They include, for example,

  • the right to determine the child's place of residence (Aufenthaltsbestimmungsrecht),
  • the choice of school, or
  • more serious medical procedures.

If the parents cannot agree on a matter of considerable importance, the family court (Familiengericht) may, on the application of one parent, transfer the decision on that particular question to that parent.

Tip Couples who wish to divorce can make a custody agreement as early as when the divorce petition is filed. Dr. Christina Schmidt will advise you comprehensively on the options available.

1.3. Withdrawal of custody and sole custody

In some cases, the father or mother would like to obtain sole custody (alleiniges Sorgerecht) of the children and have custody withdrawn from the other parent.

In principle, either parent may apply to the family court for sole custody. If the other parent consents, the court will usually grant the application. Sole custody is then transferred to one parent by court order, and custody is withdrawn from the other. A child over the age of 14 can, however, object to the transfer and thereby prevent it.

As a rule, though, the other parent does not agree. In that case, sole custody can only be transferred under strict conditions. The sole criterion is the child's welfare (Kindeswohl): transferring custody to one parent alone must, in all likelihood, best serve the child's welfare. The parent applying for sole custody must give sound reasons why custody absolutely has to be withdrawn from the other parent.

Reasons such as differing views on parenting or the assumption that the other parent is not the best influence on the child are not sufficient, for example. Nor does the fact that one parent is less able to support the child than the other – because, for instance, they have a physical disability, face a language barrier as a foreign national, or simply have more limited financial means – in itself justify withdrawing custody. After all, the child may still have a particularly strong emotional bond with that parent.

By contrast, reasons for withdrawing custody may include:

  • ill-treatment or abuse of the child,
  • neglect in the form of inadequate care or nutrition, or also
  • endangering the child's health by refusing necessary medical treatment.
  • Anyone who squanders the child's assets or
  • exposes the child to a dangerous environment (drugs, criminal circles, etc.) also risks losing custody.
  • The same applies to anyone who persistently obstructs the other parent's exercise of their contact rights.

Important to know Contact rights (Umgangsrecht) are the right of each parent to spend time with their child. They exist independently of parental custody and must not be confused with it.

In all of this, it makes no difference whether the parent concerned is at fault or, for example, cannot help their behaviour because of illness or addiction. The only decisive factor is the child's welfare.

In principle, joint parental custody is considered particularly beneficial to the child's welfare. Withdrawing custody is therefore always the last resort, used by the court only when other measures have failed.

Such a preferred measure may be, for example, an order to accept support from the Youth Welfare Office (Jugendamt). Transferring the sole right to determine the child's place of residence – that is, only part of parental custody – to one parent may also be considered in this context. Where contact rights are being boycotted, the family court may first order what is known as contact supervision (Umgangspflegschaft): a contact supervisor (Umgangspfleger) can then enforce contact with one parent against the will of the other.

In custody disputes, Dr. Christina Schmidt advises and represents you discreetly, assertively and competently – whether you wish to apply for sole custody or need to defend yourself against an (impending) withdrawal of custody.

1.4. The custody proceedings

Custody proceedings are primarily heard by the family court (in German) that also ruled on the divorce. Otherwise, jurisdiction lies with the court in whose district the child is habitually resident.

If a parent seeks a court order transferring custody, they must file a written application with the family court. The court only acts on its own initiative where it becomes aware of an impending risk to the child's welfare.

Either parent may apply in the divorce proceedings for custody to be decided at the same time. However, a decision on custody can also be sought outside the combined divorce proceedings (Scheidungsverbund), in what are known as separate proceedings (isoliertes Verfahren).

Dr. Christina Schmidt advises and represents you with expertise and commitment at every stage of the custody proceedings.

1.5. Parental custody of unmarried parents

If a child's parents are not married to each other when the child is born, they do not have joint parental custody. Instead, the mother has sole custody in this case. If the couple later marries, they automatically obtain joint custody from that point on.

Unmarried couples can, however, also obtain joint custody by jointly making what is known as a declaration of parental custody (Sorgeerklärung). They can do this either at the Youth Welfare Office or in a form notarised by a notary. The declaration of parental custody can be made even before the child is born.

If no such agreement is reached, the unmarried father is by no means without rights: since 2013, he has been able to apply for joint custody to be ordered even against the mother's wishes. The family court will usually grant the application if the transfer is not contrary to the child's welfare.

Dr. Christina Schmidt advises both married and unmarried parents comprehensively on their rights and enforces them on your behalf.

02 Contact rights

Contact rights serve the child's welfare. They are intended to ensure that children have contact with both parents – in other words, that they can maintain a relationship with them and spend time together. The child should also be able to build a relationship with the parent they do not live with and experience that they matter to that parent.

Dr. Christina Schmidt is an expert in contact law and advises you on all related questions with empathy and competence.

2.1. Relationship to parental custody

Contact rights are not tied to parental custody but are independent of it.

  • Parental custody concerns care for the child's person and property.
  • Contact rights, by contrast, refer to the child's right to contact with each parent. For the parents, contact with the child is both a right and a duty.

Grandparents, siblings and other important attachment figures may also have a right of contact if this benefits the child's welfare. In practice, however, disputes over contact rights mostly concern the visiting rights of the parent with whom the child does not live.

2.2. Scope of contact rights

Contact rights include each parent being able to see the child regularly and communicate with them. This covers personal contact (visits) as well as telephone calls, letters, e-mails and so on.

While exercising contact, the parent entitled to it may decide matters of everyday life alone, even if the other parent otherwise holds parental custody. During this time, that parent decides, for example, what the child wears or what the child eats. They also have the right to decide where the child is (right to determine the child's place of residence) and can, for example, go on visits or outings with the child. Longer trips, journeys by air and the like must be agreed.

Dr. Christina Schmidt is an expert in contact law and advises you in detail on your rights and obligations.

2.3. Arranging contact

In the event of a divorce, a contact arrangement is often made in the divorce proceedings at the same time. If this has not happened, or if the parents are unmarried, it still has to be settled exactly how contact is to be exercised.

The arrangement of contact is not regulated by law. It makes sense to organise contact so that there is room for shared activities with the child. This calls for arrangements between the parents, which can also be handled flexibly.

For couples in conflict, however, agreement is often impossible. In that case, a strict, clearly defined contact arrangement with no room for manoeuvre should be put in place. In practice, it is often agreed, for example, that the child spends every other weekend with one parent or the other. Where the parents live far apart, sometimes only longer periods of stay are practicable.

Contact usually takes place at the home of the parent entitled to contact, who either collects the child or has the child brought to them. Toddlers are, however, sometimes visited at the home of the parent they live with. With children under the age of two, the parent entitled to contact will generally not spend the whole weekend with the child but – depending on the child's age – a few hours at a time.

Special considerations also apply to public holidays (especially Christmas and Easter), birthdays and the school holidays. Separate arrangements that are fair to everyone involved must be made for these periods. The school holidays, for example, are often split equally.

If the parents cannot agree on a contact arrangement, the Youth Welfare Office can be asked to mediate. If that does not help either, the family court becomes involved.

Dr. Christina Schmidt will inform you in detail, with a focus on finding solutions, about which contact arrangements are possible and sensible in your particular case. If no agreement can be reached with the other parent, she will represent you with commitment in court.

2.4. Unjustified refusal of contact

Under the German Civil Code (BGB), each parent is obliged to refrain from anything that impairs the child's relationship with the other parent or makes the child's upbringing more difficult (duty of loyalty, Wohlverhaltenspflicht). In particular, neither father nor mother may refuse the other parent contact or boycott it. In practice, this is a recurring source of dispute.

If a parent fails to comply with this duty of loyalty and, for example, persistently obstructs the other parent's contact, the family court may order what is known as contact supervision. A specially appointed contact supervisor can then demand that the child be handed over and enforce contact.

For the child's sake, an out-of-court solution is sought. Should that not be possible, Dr. Christina Schmidt will fight for contact with your child on your behalf with assertiveness, expertise and skill.

2.5. Restriction and exclusion of contact rights

There are, however, also cases in which the parent entitled to contact seriously endangers the child's welfare, in particular the child's physical integrity or physical or emotional development. The other parent can then seek an order restricting or completely excluding contact rights. They can file a corresponding application with the family court. Grounds for exclusion or restriction may include, for example:

  • breaches of the duty of supervision by the parent entitled to contact that put the child at risk,
  • serious alcohol, drug or health problems that prevent the parent entitled to contact from looking after the child properly,
  • serious contagious illnesses of the parent entitled to contact,
  • a genuine risk of the child being abducted abroad,
  • threatened ill-treatment of the child, especially where it has already occurred,
  • child abuse in the past or a serious suspicion of it, or
  • an immoral or criminal lifestyle on the part of the parent entitled to contact.

Excluding contact rights is, however, always only the last resort. In most cases, it is also ordered only for a limited period. And even a parent who loses their contact rights generally retains at least a right to information: they can ask the other parent for information about the child's personal circumstances, development and so on. The prerequisite is that they have a legitimate interest in this and that providing the information is not contrary to the child's welfare.

Before contact rights are excluded, less drastic restrictions or conditions must always be considered first. These may include, for example:

  • An order that contact may only take place in the presence of a cooperative third party (supervised contact, behüteter Umgang). The third party is usually appointed by the Youth Welfare Office.
  • A ban on drinking alcohol or
  • proof of having undergone alcohol or drug treatment.
  • Where there is a risk of abduction abroad, the passport of the parent entitled to contact may also be withheld.

Dr. Christina Schmidt will stand up for you with all her experience. She helps you if, for the sake of your child, you wish to restrict the other parent's contact rights. And if your own contact rights are at stake, she will know what to do. She will make sure that you keep your contact with your child.

2.6. Contact rights of the unmarried father

The biological father who is not married to the mother can also have a right of contact with the child. This requires that he shows a genuine interest in his child and that contact serves the child's welfare or at least is not contrary to it. At any rate, where the biological father takes responsibility for the child, pays maintenance and so on, he will usually be able to assert a right of contact successfully.

Dr. Christina Schmidt also represents unmarried fathers in a goal-oriented manner in enforcing their contact rights.

If the parents cannot agree on a contact arrangement or how to implement it, they should first ask the Youth Welfare Office to mediate. If that does not help either, the remaining option is proceedings before the family court (in German). A hearing will be scheduled within one month. The court, too, will first try to work towards an amicable contact agreement.

If that also fails, the court records this in a formal decision. It may then consider coercive measures (Ordnungsmittel), changes to an existing contact arrangement or even measures relating to parental custody.

Dr. Christina Schmidt is at your side at every stage of a contact dispute. Focused on solutions and on her clients, she works towards an arrangement that best serves both child and parents.

This article provides general information and does not replace individual legal advice.