Law of the Parent and Child (Kindschaftsrecht)

Rules and provisions concerning the child and his/her relations to his/her family are summarily described as law of parent and child (Kindschaftsrecht). Such provisions include: the child’s descent, his/her custody and access/contact, his/her name, adoption, child maintenance in the associated provisions for court proceedings.

The most significant provisions for these fields of law are contained in the German Civil Code (BGB). As far as judicial matters are concerned, the Code of Civil Procedure (Zivilprozessordnung, ZPO) and the Act on Matters concerned with Non-contentious Litigation (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit, FGG) contain the most significant provisions.

The new provisions of the Act to Reform the Law of Parent and Child (Gesetz zur Reform des Kindschaftsrechts) entered into force on 1 July 1998. The laws governing the relations between parents and children have been comprehensively revised since 1998. The core of the Relations of Parent and Child Reform Act are the new provisions on parental custody and access/contact rights. Before 1 July 1998, the Family Courts, the Guardianship Courts and the Civil Division of the Local Courts all had partial jurisdiction over legal matters involving relations between parents and children, while the new Act provides for the exclusive jurisdiction of the Family Courts.

Together with the Act to Reform the Law of Parent and Child, two other Acts were promulgated which also concern relations between parents and children.

The Act on Equal Rights of Children Born out of Wedlock in Succession-Law Matters (Gesetz zur erbrechtlichen Gleichstellung nichtehelicher Kinder) has abolished the special provisions on the succession rights of illegitimate children and children born out of wedlock now have the same rights under this law as children born in wedlock.

The Guardianship Act (Beistandschaftsgesetz) abolishes the ex-officio custody of the Youth Office which the previous law established for children born out of wedlock, and introduces a voluntary choice for a single parent having the custody and care of the child to request the Youth Office’s assistance in paternity and maintenance matters.

The new provisions on parental custody and access/contact rights (parental custody in the German Civil Code (BGB), Title 5, in the version of 2 January 2002) are at the core of the Act to Reform the Law of Parent and Child.

Section 1626 of the Civil Code (BGB) stipulates that the parents have the duty and the right to care for their child while a minor (parental custody). Parental custody includes care for the child as a person (personal custody) and for the child’s property (property custody). In the child’s care and education, the parents take the child’s growing abilities and growing need for independent action into account. The child’s well-being normally includes his/her contacts to both parents.

Parents who are not married to one other are entitled to the joint custody of their children if they jointly state this intention at a Youth Office or before a notary.

When married parents share the custody of their children, or unmarried parents have made joint custody statements, the custody status remains unchanged in a separation or divorce, as long as one parent does not file for exclusive custody with the Family Court. Such a motion must be approved if the other parent agrees or when this is the best option for the child’s well-being.

In case of separated parents, joint custody is facilitated by giving the parent who is the child’s actual care giver the right to decide alone on matters of the child’s everyday life.

With respect to the right of access, the former differentiation between children born in and out of wedlock has been abolished. Pursuant to the new provisions, all fathers have the right of access, which – as it was the case for children born in wedlock – may only be restricted or ruled out when it is necessary for the child’s well-being. Other significant persons to whom the child is emotionally attached, e. g. grandparents and siblings, are also given access rights when this is beneficial for the child’s well-being.

Another new provision says that the child him/herself is entitled to contacts with both parents. As a result, the former right of the parents is now turned into a right of the child. Consequently, the Reform Act does not only emphasise the right but also the duty of the individual parent to remain in contact with the child.

The Act amending the rules on paternity disputes, the access right of significant persons for the child, on the registration of precautionary dispositions and on the introduction of forms for the remuneration of professional guardians was adopted by the Bundestag in April 2004. The right of access now applies to persons having a close relationship with the child if these persons either have or had actual responsibility for the child (social or familial attachment). This actual responsibility for the child will normally be assumed if the person lived with the child in the same household for a prolonged period.

Counselling services of child and youth service providers in custody and access proceedings have been included to support the parents in settling their own conflicts so that all parents will be informed about such services and can therefore use them more extensively and specifically when the need arises.

The Act Condemning Violence in Education and Amending the Child Maintenance Laws (Gesetz zur Ächtung der Gewalt in der Erziehung und zur Änderung des Kindesunterhaltsrechts, GewÄchtG) already entered into force in November 2000. The amended section 1631 subs. 2 of the Civil Code (BGB) states: “Children have a right to non-violent education. Corporal punishment, mental injury and other degrading actions shall not be permissible”. On a highly sensitive issue, i. e. the prohibition of maltreatment, the Act introduces the following provision: The Act specifically determines that physical and mental maltreatment is unlawful, as it is a degrading educational method. Consequently, the “parental right to corporal punishment” was abolished as an argument justifying a bodily injury to a child.

The sexual abuse of children constitutes a form of threat to the child’s well-being. Even though section 1666 Para. 1 of the Civil Code does not list abuse as an independent threat category, it is included in the “abusive exercise of parental custody” category, or it is classified as “dangerous third-party behaviour” when the parents do not intervene to protect the child.

The judicial actions in case of a danger to the child’s well-being are defined in section 1666 of the Civil Code. The Code determines that the Family Court has to take the necessary measures to avert a danger to the child when the physical, psychological or mental well-being of the child or the child’s property are threatened due to an abusive exercise of parental custody, child neglect, non-culpable failure of the parents or third-party actions, when the parents are unwilling or incapable of averting such threats.