Child Custody in Germany

Parents holding children's hands
Update 09.08.2022

What are my rights and obligations as a parent?

Being a parent is a big job and comes with huge responsibilities. In Germany, many of these responsibilities and obligations are regulated in custody laws. Section 1626 of the Civil Code stipulates some crucial regulations concerning child custody. It states that parents must take good care of their children and bring them up in a violence-free atmosphere. These regulations are designated to ensure that children are protected and well cared for. Although parents are entitled to make decisions in certain areas of their child's life, they must also consider the child's wishes. Respecting children's autonomy and choices is an essential part of custody rights.

What do I have to know?

What is custody right ("Sorgerecht")?

The so-called "Kindschaftsrecht" (children's rights) is a part of the German law which regulates the relationship between parents and their children. Custody rights are part of the children's rights and state that parents are responsible for their child's upbringing, health and needs. Lawyers, therefore, refer to parents as "Erziehungsberechtigte" or legal guardians. Custody right gives parents rights and responsibilities toward their children; for instance, you can decide where your child lives and who they can meet. Parents are also the legal representatives of their children, meaning they can make legal decisions for their children. For example, as a parent, you can conclude a contract on your child's behalf since children can only do so themselves from 18.

What are my child's rights according to the custody law?

Custody rights include specific rights for children, for example, the right to a violence-free upbringing. Furthermore, depending on a child's age and development, parents must involve their child in decision-making. For instance, children aged 15 and older can decide about their religion. In principle, custody rights are intended to ensure that children are doing well and parents are taking good care of them.

Also, if parents dispute custody in court, children have special rights in the procedure. You can learn about these rights in the section "How are custody proceedings carried out in court?".

Who is entitled to custody rights?

Custody rights apply to minor children, i.e. children under 18 and their parents. According to the law, a child's parents are the (biological) mother and father - or the adoptive parents. The mother of a child is the woman who gave birth to them.

A man is considered the child's father if one of the following conditions is met:

  • The man was married to the mother when the child was born.
  • The man has acknowledged paternity with the mother's consent. You can learn more about paternity acknowledgement and its procedure in the "How can I acknowledge paternity?" section.
  • The family court has recognised the man as the father.

Please note: In same-sex and queer relationships, acknowledging paternity or maternity is, unfortunately, more complex. So far, German law only recognises mothers and fathers as parents. For lesbian couples, this means that the woman who did not give birth to the child must adopt their partner's child to be legally considered the child's (other) mother. In the case of gay couples, both men must adopt the child in order to be regarded as fathers legally. You can read more about laws pertaining to LGBTQIA+ in our chapter "LGBTQIA+".

We are not married. How can I acknowledge paternity?

If the parents are not married, the father can acknowledge paternity, i.e. officially confirm that he is the father. Only after acknowledging paternity is he considered the child's father officially. Furthermore, the mother must agree to the paternity acknowledgement. You can acknowledge paternity before your child's birth - then, the father's name can appear on the child's birth certificate. But if you acknowledge paternity after childbirth, you must apply for a new birth certificate for your child.

You can have paternity acknowledged at the Youth Welfare Office, Registry Office, district court or a notary's office. The Youth Welfare Office provides the service free of charge, but you usually have to pay for it at the district court, Registry Office and notary offices. For the paternity acknowledgement, you and the other parent should make an appointment at one of the offices mentioned above in your place of residence, and both appear in person. You can find the Youth Welfare Office responsible for you at jugendaemter.com. To search for the proper Registry Office or district court, visit the website of your city or municipality. Alternatively, you can use Google to search for your Registry Office or district court by entering the keyword "Standesamt" or "Amtsgericht" and the name of your place of residence. You can find notaries nearby at notar.de.

During the appointment, the mother must present her maternity card, ID card and birth certificate, and the father, his ID and birth certificate. If your birth certificate is issued abroad, you must submit a copy translated by a sworn translator. You must also present your child's birth certificate to acknowledge paternity after childbirth. Without required documents, in principle, paternity acknowledgement is not possible. If you don't have all the necessary documents, seek advice from a counselling centre or lawyer in advance. You can check out the Pro Asyl website to find a nearby counselling centre. At www.rechtsberaterkonferenz.de, you can find lawyers who specialise in advising refugees and asylum seekers. Important: Some offices require additional documents. It is best to ask when making your appointment.

Please note: The authorities can report your application for paternity acknowledgement to the Immigration Office if the staff suspect that you are only acknowledging paternity to obtain a residence permit for yourself or the child. The Immigration Office will then review your case. You can learn more in the section "What happens if the authorities don't believe I am the father?".

Important: You do not automatically get custody if you acknowledge paternity - for that, you and your partner must submit the so-called "Sorgerechtserklärung" or declaration of custody. You can read more about the declaration of custody in the section "What is a declaration of custody('Sorgerechtserklärung')?".

What happens if the authorities don't believe I am the father?

In Germany, assuming paternity for a non-German child just so that the child, the father or the mother can obtain a residence permit (known as "missbräuchliche Vaterschaft") is against the law. 

The authorities and notaries are obliged by law to report to the Immigration Office if they suspect that a man applying to acknowledge paternity is not the child's actual father. That is often the case, for instance, when one parent does not have a secure residence permit in Germany or is obliged to leave the country. Then the authorities can suspect that the acknowledgement of paternity is only applied to secure the right of residence and may conclude that the applicant is not the birth father. Authorities also often doubt paternity when they see no personal relationship between the parents and the child. The Immigration Office reviews the case if the authorities or notaries report such issues, but they can only do so if you are not the child's biological father. Make sure to seek counselling from a lawyer or a counselling centre if the immigration authorities are examining your case. For instance, you can find a counselling centre nearby on the Pro Asyl website. At www.rechtsberaterkonferenz.de, you will find lawyers who specialise in advising refugees and asylum seekers.

Please note: Paternity will not be officially recognised as long as the examination of the case by the Immigration Office is ongoing.

What is joint custody ("gemeinsame Sorgerecht")?

Parents can share child custody - i.e., "gemeinsames Sorgerecht" or joint custody. If you were married when your child was born, you automatically have joint custody and do not have to apply for it separately.

If you were not married when your child was born but want to share custody, you must complete what is known as "Sorgerechtserklärung" or declaration of custody, i.e. you both declare that you wish to have joint custody. Otherwise, the mother will hold sole custody. To learn more about the declaration of custody for heterosexual couples, see the section "What is a declaration of custody?". Different regulations apply to lesbian or gay couples - you can read more in the "Who is entitled to custody rights?" section.

Joint custody means that both parents look after the child and make essential decisions about the child together. These crucial decisions are known as "Angelegenheiten von erheblicher Bedeutung" (matters of major importance). They are significant because they can profoundly impact your child's life - matters like what school your child attends, where they live and what their religion is. Everyday life issues, such as when your child goes to bed or what they eat, are called "alltägliche Entscheidungen" (day-to-day decisions).

This distinction between these two types of decisions becomes crucial when parents separate and share custody. After separation, you will continue to deal with "matters of major importance" together. But the parent with whom the child lives can make the "day-to-day decisions" unilaterally. It is best to come to an agreement with the other parent to avoid conflicts later.

What is sole Custody ("alleinige Sorgerecht")?

Sole custody means that only one parent has custody rights. If you are an unmarried mother, you automatically have sole custody from childbirth. The parent with sole custody can make decisions on "matters of major importance" independently and without consulting the other parent. The same applies to "day-to-day decisions". However, the other parent can appeal against these decisions. For more on "day-to-day decisions" and "matters of significant importance" see the "What is Joint Custody?" section.

You can find out whether you can get sole custody in the event of separation in the section "Who gets custody in a divorce?".

What is a declaration of custody ("Sorgerechtserklärung")?

The "declaration of custody" is an official document. In it, unmarried parents state that they care for the child together. By doing so, they establish that they share custody, i.e. have joint custody. In a declaration of custody, parents can also agree and document that one of them will have sole custody in case of a separation, or they will both continue to care for their child together.

You can submit the declaration of custody at any time at the Youth Welfare Office or a notary's office. The declaration of custody is not effective until both parents submit it (either together or separately). You can find the Youth Welfare Office responsible for you at jugendaemter.com or search for a notary nearby at notar.de.

You will need to present your ID and your child's birth certificate to make a declaration of custody. The father's name must appear on the birth certificate; otherwise, you will need certified copies of the paternity acknowledgement and the mother's declaration of consent to paternity. A certified copy is a verified copy of an official document; you can only obtain it from official bodies, such as an administration or a notary's office. To learn more about the paternity acknowledgement procedure, check out the section "We are not married. How can I acknowledge paternity?". You can learn more about the certified copies and where to obtain them in our chapter "Certified copies".

Please note: At a notary's office, the declaration of custody costs up to €80 (as of 2021). Youth Welfare Office provides the service free of charge.

Can I leave Germany with my child?

Whether you can leave Germany with your child depends on whether you have sole or joint custody and how long you plan to be away with your child.

I have joint custody:

If you and the other parent share custody, you cannot decide where your child lives unilaterally and need the other parent's consent regardless of whether you plan to move within Germany or go abroad. For holiday trips, you do not need to seek the other parent's approval if you both agree in advance that such trips are considered "day-to-day decisions". You can find out more about "day-to-day decisions" in the section "What is joint custody?". In general, you both should determine what matters you want to consider "day-to-day decisions" - it is best to record such an agreement in writing.

You need a court order if you wish to move with your child against the other parent's will. For that, you should submit an application to the family court for sole custody or demand to determine your child's whereabouts unilaterally.

Important: Moving abroad with your child without the other parent's consent is considered child abduction ("Kindesentziehung"), which is a criminal offence. Perpetrators can face a prison sentence of up to 5 years or a fine.

Please note: If your child has been taken abroad without your consent, you can contact the Central Authority for International Custody Conflicts. They can also help you if you are abroad and your child has been taken to Germany against your will. The authorities will support you to get your child back. However, they can only help if the country where your child is staying is a part of the European Union or has signed The Hague Child Abduction Convention. You and your child must also meet specific requirements: for example, your child must be under 16, and you must have been caring for your child. To seek help from the authorities, you must fill out a form available in many languages ​​on the Federal Office for Justice's website in the section "Formulare für Anträge nach HKÜ und ESÜ".

Additionally, you need:

  • A Power of Attorney (to enable the authorities to contact the competent court and authorities abroad on your behalf).
  • Evidence confirming that you have joint or sole custody.
  • Evidence confirming your child's departure is against your agreement with the other parent, for example, a declaration of custody.

 

I have sole custody:

If you have sole custody, you can decide on "matters of major importance" independently, including your child's place of residence. That means you do not need the other parent's consent. The same applies when you want to move abroad or go on a holiday.

If the other parent disagrees with your decision, they can submit an application to the family court for joint custody or demand a say in your child's whereabouts. If the court agrees with their request, a custody battle may ensue. You can learn more about custody disputes in the section "How are custody proceedings carried out in court?".

Before you contact the family court, you can seek counselling. The central point of contact for cross-border parental conflicts and mediation (ZAnK) will provide you with counselling free of charge by telephone. Their contact number is +49 30 62 980 403, and you can reach the staff from Monday to Friday from 9 a.m. to 4 p.m. They speak German, English, French and Spanish.

What happens if one or both parents pass away?

When one of the parents with joint custody passes away, the other parent usually gets sole custody. That means you don't need a court decision if the other parent passes away.

But if the parent with sole custody dies, a family court ruling is needed for child custody. In such circumstances, usually, the court gives sole custody to the remaining parent unless it is concerned the child will not fare well with them. When that is the case, a guardian will get the child's custody. A guardian is a person who assumes custody of the child instead of the parents, for instance, when the parents can no longer take care of their child. The family court is the body which can determine who becomes the child's guardian - it can be a relative or the Youth Welfare Office.

The child will also be assigned a guardian if both parents pass away. As a parent, you can designate a person as the guardian (in the event of your death) in your will. You can select any person you prefer - given they are over 18 and fit enough to care for a child. The family court then usually transfers custody to the person assigned by you, unless the court believes the person cannot take good care of your child. That can be the case, for example, if the person is seriously ill or in case your child does not want to live with them. From 14, children are entitled to have a say in who should become their guardian. The family court determines a guardian if the parents do not appoint one before passing away.

Important: In your will, you can also specify who should not become your child's guardian under any circumstances and why.

Please note: You should review your will regularly and amend it if necessary to make sure, in the event of your death, no decision will be made against your will. Make sure you write and sign the will yourself. You must also state the date and place where your will have been written. Your will may be legally invalid if you do not observe these points.

Who gets custody in a divorce?

That depends on whether you were married or not.

I was married:

Both married parents usually retain joint custody after divorce. You must inform the family court: when filing for divorce, state that you have agreed to joint custody. Furthermore, you need to specify where your child will be living and clarify which parent gets to see the child and how often in your divorce application. You must apply to the family court if you do not want to share custody. You can find out how in the section "When is the family court responsible for deciding on custody?".

 

I was not married:

If you separate from your partner, you can continue to have joint custody if you already had joint custody before the separation and documented it in your declaration of custody because the declaration of custody continues to apply after divorce or separation. You can read more about the declaration of custody in the section "What is a declaration of custody?".

 The mother retains sole custody if you have not submitted a declaration of custody. The father can then apply to the family court for joint custody. He does not need the mother's consent for it. However, the court will inform the mother about the father's application. If she objects, she can tell the court the reasons that speak against joint custody. For instance, the mother may explain to the court that the child will not fare well in the father's care. The court sets a deadline - if the mother provides justifications to the court within the time limit and the court recognises the mother's concerns are reasonable, the court will initiate a so-called custody proceeding. Then both parents come to the court and are heard. You can find out more about the proceedings and how they are carried out in the section "How are custody proceedings carried out in court?". If the mother does not react to the court's letter within the time limit or has no objections to joint custody, the court will mandate joint custody, and both father and mother will share custody.

Important: If you cannot agree on how to co-parent after your separation, you can get help. For instance, you can arrange an appointment and seek counselling from your Youth Welfare Office. To find the Youth Welfare Office responsible, visit jugendaemter.com. The employees usually only speak German. The profamilia counsellors can also support you. You can find one of their counselling centres nearby on the profamilia website by entering the name of your place of residence or postcode. The service is free; however, the staff usually only speak German. You can also call the Parents Hotline; their staff speak many languages, and their service is cost-free.

 

 

When is the family court responsible for deciding on custody?

You must always go to the family court if you want to revise custody rights for your child; only the court can make such legally binding changes. Lawyers call such revisions "transfer of custody" ("Sorgerechtsübertragung") - this is the term referred to, for instance, when you demand sole custody or the other parent requests joint custody from the court.

For any changes in your child's custody, you must always apply at the family court in the city where your child lives. You can find the competent family court on Google by entering the keyword "Familiengericht" and the name of your child's place of residence.

Important: If you apply for sole custody, you must provide a solid justification for your demand in your application. The court will only grant sole custody if it establishes that joint custody is not in the child's interest. That can be the case, for instance, when a parent physically or mentally abuses the child, doesn't feed them adequately, doesn't let them go to school, or suffers from an addiction.

The family court also decides on custody upon the Youth Welfare Office's request. But only if staying with the parent(s) endangers the child. You can learn more about Youth Welfare Office's responsibilities in our chapter "Youth Welfare Office".

How are custody proceedings carried out in court?

Filing an application with the family court does not necessarily mean that court proceedings will follow. For instance, when you and the other parent agree on how to share custody, you can submit an application and notify the family court - the court will then approve your application without a trial.

Even if you and the other parent disagree, some judges try to avoid a trial, since it often takes a long time, costs money and is usually exhausting for you and your child. Therefore, the court may refer you to a counsellor or mediator. Mediators are consultants who specialise in dispute resolution. If you still cannot agree on a solution, then there will be a court case at the family court, and the court decides which solution is best for the child. To determine what's in your child's interests, the court hears various people as witnesses, including the parents, the child (if they are older than 14 years), the child's "guardian ad litem" ("Beistand"  or "Verfahrensbeistand“) and representatives of the Youth Welfare Office. A guardian ad litem is a court-assigned, specially trained lawyer or education expert who represents your child's interests in court proceedings, as in a custody dispute, children have a right to co-determination. The judges ask the child about their wishes, for example, where they would like to live or how often they would like to see their father or mother. The older a child is, the more the judges consider their wishes. In some cases, the court also seeks advice from psychological experts, especially when judges are not well versed in specific topics. Then psychologists will function as assessors and prepare a kind of report for the court about your child's relationship with you and the other parent.

You do not necessarily need a lawyer for the proceedings; however, it can be helpful to have one. You can apply for legal aid if you cannot afford a lawyer. The court will then assume your legal and court costs. You can learn more in our chapter "Legal Aid". To find specialised lawyers, you can, for instance, visit anwaltsauskunft.de.

How expensive is a custody proceeding in court?

In principle, you and the other parent will share the costs of the court proceedings equally - meaning you each pay half the expenses. The expenses could vary depending on the procedure - you can consult a lawyer about the costs in advance. You can find lawyers at anwaltsauskunft.de.

Please note: If you cannot afford a lawyer, you can apply for legal aid. The court will then assume your legal and court costs. You can learn more in our chapter on legal aid.

I no longer have custody of my child. How does this affect my residence permit?

All foreign nationals need a residence permit to live in Germany. Sometimes, individuals are issued residence permits because they are parents to children with German citizenship or a German residence permit. However, even if they lose custody of their child, they do not have to leave Germany immediately.

In such a case, the Immigration Office will check whether the parent in question is taking care of the child. Caring means you meet your child regularly and support them financially by paying child maintenance.

In principle, the Immigration Office will not extend your residence permit only if they establish that:

  • you don't see your child.
  • you do not pay child maintenance.
  • there is no relationship between you and your child.

If you suspect you may lose your right of residence, you should contact a counselling centre immediately. You can learn more in our chapter "Born in Germany".

Important

If you need legal advice from a lawyer on child custody but cannot afford it, you can apply for legal aid or "Beratungshilfe". The court then assumes most of the costs, and you only have to pay €15. You can apply for legal aid at the district court. To learn more, check out our chapter "legal aid".

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