Right of contact and of access, custody and the best interests of the child
Before you read on, I would like to emphasize that this article only describes my personal view on the topics mentioned. In the course of many years as a separated father and as a result of the diverse experiences that I have been able to gain in the meantime, an opinion on the legal aspects has formed in me, which does not claim to be complete or legally binding. You can get binding and detailed information on your individual situation from a specialist lawyer or from the youth welfare office.
In connection with the separation and divorce of parents, certain terms from German family law or other areas of law appear again and again, which I would like to briefly explain here. On the internet you will find an immense variety of additional sources of information for every keyword.
Right of access and visiting rights
The right of access from the German civil code regulates the right to personal contact between parents and minors. Both parents and their child have this right, which is accompanied by a duty of contact for the parents. There is no duty of contact for the child.
At this point it should be mentioned that other family members, for example grandparents, also have access rights. Since this post focuses on the relationship of a separated father to his child, I would like to leave it at that point and not go into further detail.
For example, if your son wants to see you, but you do not want to meet him, then your son can oblige you to spend time with him because of his contact rights. The reverse is not true: If your son doesn't want to see you, you're out of luck.
Another example: If you want to see your daughter, and your daughter also wants to see you, then the mother must not oppose this mutual desire for contact. The mother must not simply (out of her mood) prevent you from dealing with your child.
The right of access also brings with it the right to visit, otherwise fathers and their children could only meet in neutral places (café, park, museum). But this would be detrimental to the formation of an independent relationship independent of the mother.
The duty of conduct also belongs to the right of access. This commands the parents to refrain from anything that affects the child's relationship with the other parent. This includes not being allowed to speak condescendingly about the other parent in the presence of the child. But it is also part of bringing your child to the train station or airport so that he or she can travel to the other parent.
One does not have to file a suit for the right of access separately even after a separation or divorce. It is a fundamental right of all family members and can only be temporarily suspended, partially restricted or completely refused by a court under very specific conditions. Such prerequisites always exist when the child's best interests are in practical danger.
Custody and right to determine the place of residence
The custody (personal and property care) from the civil code is independent of the access rights. So whoever has the right of access does not automatically have custody. This can lie with one or both parents or with third parties, for example the youth welfare office. In my further statements, I assume that you have custody of your underage child. Incidentally, joint custody is the rule after separation and divorce, according to the legislature.
For everyday decisions that do not have a serious impact on the development of a child, the authority rests with the parent with whom the child mainly lives (in our case the mother). This should enable an uncomplicated and smooth daily routine for the well-being of the child.
The mother of your child does not have to involve you in every decision, get your approval for everything or inform you about every little thing. In terms of a normal and fluid daily routine, this would be neither useful nor helpful or practicable. However, this only applies to those decisions that are irrelevant to the child's development.
Significant decisions, such as the choice of school, major surgical interventions or even moving, must be made by mutual agreement between the custodians. Among other things, custody includes a right to determine the place of residence, according to which a decision to move the child must be made by mutual agreement. Unauthorized action by a parent with custody is therefore illegal, and sometimes not even possible.
In my experience, many of these significant decisions require that both custodial parents sign a registration form (for school or the residents' registration office) or a consent form (for a surgical intervention or other procedure). So the mother usually cannot get past you and an agreement with you on such topics.
For the sake of completeness, I would like to mention that custody not only includes the right to determine the place of residence and the right of upbringing, but also the maintenance obligation and the duty of supervision.
Custody can also be curtailed in court if the child's best interests are in real danger. On the other hand, custody can also be granted in court if this serves the best interests of the child.
In connection with the right of access and custody, the best interests of the child are often mentioned. The well-being of the child is like a lighthouse on the coast to which everything is oriented. Rights can be granted, restricted or withdrawn in the interests of the child.
Various criteria are used to determine the best interests of the child. One of these criteria is the child's will, which, for example, is more or less clearly expressed by the child in a conversation. This does not mean that it goes according to the motto “his will may be done”, because the child's will could have been influenced and thus not correspond to the best interests of the child. However, it is said that the child's will, even if it is a minor, plays a role. The older a child is, the greater say it has.
The best interests of the child are primarily endangered by neglect, abuse and violence. Although everyone can probably imagine something by it, these terms are still not very concrete. It seems to be easy with the issue of violence. Children have a right to a non-violent upbringing, there is no longer a parental right to punish. Even light hits are therefore prohibited. But what exactly is neglect? I don't want to speculate about that at this point, I'll leave that to the experts.
Law and order in practice - my personal experience
Due to the legal situation in German family law, it is basically possible for separated fathers to contest the mother's and her children’s moving plans. Just on the basis of the right to determine the place of residence, a clear “no” should be sufficient to at least delay the move of the children, if not to prevent it altogether.
With this clear “no” I don't mean, of course, just to say “no” and then put your hands in your lap. If this "no" is to have any effect, then of course appropriate action must follow. The best thing to do is to get expert advice about your options.
When my divorced wife announced that they all together would be moving, why didn't I say “no”? Why did I not hire a lawyer and not exhaust all the instances of the German courts?
There were essentially three reasons for this, although I can no longer say exactly which weighed the heaviest. The first reason was my children's will. Neither my daughter nor my son made it clear to me at no point that they did not want to move. My daughter even said several times that she was looking forward to Hamburg and her new school. My son didn't say anything about it at all, which is no wonder given his age (he wasn't quite 9 years old in the summer of 2011). He just took it as it came.
The second reason was that I couldn't imagine a model that wouldn't have been at the expense of our children. What should I have fought for with the help of a lawyer? That my divorced wife will move to Hamburg without our children? Or that she can only take one of the two children with her and the other one stays with me? The idea of separating our children from her mother or siblings from each other was and still is not an acceptable compromise for me.
The third reason was the fear or perhaps the realization that with a lawyer by my side I would probably only have fought for my ego. It would probably not have been primarily about the aforementioned child's best interests, but about getting and enforcing my (legal) rights. Fortunately, I realized that before I turned on heavy artillery.
I am deeply convinced that it is not only important what the legal situation in family law looks like and what possibilities the legislation opens up. It is of much greater importance to know, or rather to feel, how one's own wishes and needs and those of the child can be taken into account and realized in the most beneficial way for everyone. The laws can only be tools and aids to achieve a good result for all concerned, no more than that.
So it came about that, despite all the legal possibilities offered by family law, I became a separated father. From today's perspective, I behaved absolutely right back then, and I still don't regret my behavior. Why can I say that so confidently? Quite simply because my two children are doing great, because they are developing very well and because I am proud to be their dad.