Child Custody in Germany

Child custody in Germany, what the law says and who has parental responsibility for a child

Child custody and parental responsibility are primarily governed by the German Civil Code (BGB). The legal framework focuses on the best interests of the child and there are different rules depending on the marital status and living arrangements of the parents.

In Germany, the term “Sorgerecht” refers to parental responsibility, which includes custody, care, education, legal representation and management of the child’s financial affairs. Responsibility includes:

• Physical custody: The right to make decisions about the child’s daily life, education and upbringing.
• Property custody: The right to manage the child’s financial affairs.
• Legal representation: The ability to act on the child’s behalf in legal matters

When parents are married at the time of the child’s birth both parents automatically share joint custody (gemeinsames Sorgerecht), as set out in section 1626(1) of the Civil Code and section 1671 of the Civil Code. This means that both parents must jointly make decisions about the child’s upbringing and welfare. Joint custody continues after a divorce unless the court decides otherwise.

If the parents are not married, the mother automatically has sole custody of the child at birth (Section 1626a BGB). The father can get joint custody if both parents make a joint custody declaration (Sorgerechtserklärung) or through a court order. Both parents must agree to this declaration for joint custody to be granted. If the parents cannot agree on joint custody, the father can apply to the Family Court under Section 1672 BGB and the court will grant joint custody if it is in the child’s best interests.

Even after separation or divorce, joint custody usually continues unless one parent applies to the court for sole custody, arguing that joint custody is not in the child’s best interests.

The parent with whom the child lives is usually given the right to decide on everyday matters (everyday care, Section 1687 of the German Civil Code), while important decisions such as education, health or relocation must still be made jointly.

The law ensures that children have a right to contact with both parents (§ 1684 BGB), and both parents have the right and the duty to have contact with their child. In cases of dispute, the courts can set visitation schedules to ensure that the non-custodial parent can maintain a relationship with the child.

If parents cannot agree on custody issues, the family court will intervene and make decisions based on the best interests of the child. The court may involve child psychologists or social workers from the Youth Welfare Office to assess the situation before making a decision.

All legal provisions are designed to prioritise the best interests of the child while balancing the rights and responsibilities of both parents and third parties.

Types of Children Custody

In Germany, child custody is generally divided into two main types: joint custody and sole custody. The type of custody relates to who has the legal authority to make important decisions about the child’s upbringing, care and welfare.

• Joint custody (Gemeinsames Sorgerecht): Joint custody means that both parents share legal responsibility for making important decisions about the child’s welfare. This includes decisions about education, medical treatment, religious upbringing and other important matters affecting the child’s life.
• Sole custody (Alleiniges Sorgerecht): Sole custody means that only one parent has the legal authority to make major decisions about the child’s life.
• The other parent may retain visitation rights, but does not have the legal right to make decisions about education, health or other important matters.

Here is a summary of the main differences between joint custody and sole custody.

Custody arrangements can be reviewed if circumstances change, for example if one parent moves away or if the child’s welfare is at risk.

Either parent can apply to the court for a change in custody (from joint to sole or vice versa), but the court will always base its decision on what is in the best interests of the child (Kindeswohl).

Legal Process for Obtaining Custody

The legal process for obtaining custody in Germany, whether joint or sole, involves different steps depending on the circumstances of the parents and the custody arrangement sought.

Automatic Custody

If the parents are married, joint custody is automatically granted to both parents at the birth of the child under Section 1626 of the German Civil Code. No further legal steps are required unless the parents separate or divorce, in which case they may need to formalise post-divorce custody arrangements.

In the case of unmarried parents, the mother automatically has sole custody of the child at birth under Section 1626a BGB, unless the parents make a joint custody declaration. The father does not automatically have custody, but can acquire it through a special legal procedure.

Joint Custody for Unmarried Parents

If parents are not married and want to share custody, they must go through a legal process to establish joint custody.

There are two main ways of obtaining joint custody: through a joint custody declaration or by applying to the court for joint custody.

The joint custody declaration must be made voluntarily by both parents and must be registered with the Youth Welfare Office or a notary. Once the declaration has been made, both parents have joint custody with the same rights and obligations as married parents.

If the mother does not agree to joint custody, the father can apply for it through the family court. The court will decide whether granting joint custody is in the best interests of the child. If the court decides that joint custody is in the child’s best interests, it will grant it even if the mother objects.

Sole Custody

If one parent wants sole custody (either after a separation or if the parents were never married), the legal process involves making an application to the Family Court. The court will then make a decision based on the best interests of the child.

If both parents agree that one parent should have sole custody, they can make a joint application to the Family Court. The court will review the agreement to ensure that it is in the child’s best interests and then formalise the arrangement.

If the parents cannot agree on custody, one parent can apply for sole custody. This usually happens in cases of separation, divorce or if one parent believes the other is unfit to share custody. The application must be made to the family court, which is part of the local magistrates’ court. The court will assess the situation, possibly with the help of the Youth Welfare Office and experts such as child psychologists or social workers. The court’s decision will be based on the best interests of the child, taking into account factors such as the child’s relationship with each parent, each parent’s living situation and whether either parent poses a risk to the child’s welfare.

Rights of custodial parents

The custodial parent is the parent with whom the child primarily lives and who usually has primary responsibility for day-to-day decisions.

Their rights include:

• Day-to-day care (Alltagssorge): The custodial parent has the right to make everyday decisions for the child, including matters relating to schooling, meals, routines and minor medical care, without the consent of the other parent.
• Major decisions: If the custodial parent has sole custody, he or she has full authority to make major decisions about the child’s life, including decisions about education, religion, medical treatment and relocation. If the parents have joint custody, both parents must agree on important decisions, even if the child primarily lives with one parent.
• Physical custody and care (Obhut): The custodial parent has the right to the physical care and upbringing of the child, including responsibility for providing the child with shelter, food, clothing and emotional support. This includes the right to decide where the child lives and to enrol the child in school or day care.
• Management of the child’s assets: The custodial parent often manages the child’s finances and assets if the child receives an inheritance, gifts or child support. This is part of the parent’s property custody (Vermögenssorge).
• Right to move with the child: If the custodial parent wants to move to another place, especially another city or country, he or she usually needs the consent of the non-custodial parent, especially if both parents share custody. If the non-custodial parent does not consent, the custodial parent must apply to the family court for permission to move.
• Legal representation of the child: The custodial parent has the right to represent the child in legal matters, such as applying for a passport or making decisions about health care, if he or she has sole custody or if the other parent consents to joint custody.

Rights of non-custodial parents

Even if the non-custodial parent does not have primary physical custody, they still have significant rights to remain involved in the child’s life, especially in cases of shared custody.

• Right of access (Umgangsrecht): The most fundamental right of the non-custodial parent is the right to have regular contact with the child. This includes both visits and communication (e.g. phone calls, video chats) to maintain a strong relationship. The child also has the right to maintain contact with both parents and the custodial parent must support and facilitate this contact.
• Visitation Rights (Umgangsregelung): Visitation arrangements are usually agreed between the parents or, if they cannot agree, determined by the court. The arrangements may include regular visits (e.g. weekends or holidays), overnight visits and extended visits during school holidays. If there is a conflict, the family court may set a structured visitation schedule to ensure that the noncustodial parent can maintain a relationship with the child. Supervised visitation may be ordered in cases where there are concerns about the safety or welfare of the child.
• Involvement in major decisions: In cases of joint custody, the non-custodial parent still has the right to participate in all major decisions about the child’s upbringing, such as schooling, health care and religious education. Even if the child’s primary residence is with the custodial parent, the noncustodial parent’s consent is required for major decisions affecting the child’s life.
• Right to information about the child: The noncustodial parent has the right to be kept informed about important aspects of the child’s life, such as the child’s health, education and welfare. This right extends to receiving school reports, being informed about medical treatment and being kept informed about the child’s general development.
• Right to legal recourse: If the custodial parent obstructs the noncustodial parent’s contact or fails to provide necessary information about the child, the noncustodial parent can apply to the family court to have his or her rights enforced. The non-custodial parent can also apply for a change in custody or visitation arrangements if the current arrangements are not in the best interests of the child.

Modifications and Review of Custody

In Germany, custody can be reviewed and changed in certain circumstances, particularly if a parent believes that the current custody arrangement is no longer in the best interests of the child. The procedures for reviewing and modifying custody follow specific legal steps, usually involving the family court, and the exact process depends on whether both parents agree to the review or whether it is contested.

A custody review can be initiated if there has been a significant change in circumstances that affects the welfare of the child.

These changes can include:

• A parent’s relocation (especially if it affects the child’s access to the other parent).
• The inability of a parent to care for the child for health, financial or other reasons.
• Evidence of neglect, abuse or endangerment of the child’s welfare.
• A significant change in the child’s needs or preferences (e.g., as the child grows older, the child may express a preference to live with the other parent).
• Changes in the parents’ ability to work together or communicate effectively.

Custody can also be reviewed if both parents agree to change the arrangement. For example, parents may agree that one parent should have sole custody or that the child’s primary residence should change. In this case, the parents can jointly apply to the family court for approval of the new custody arrangement.

As children get older, their wishes about where they live and who should have custody can also be taken into account by the court, especially if the child is mature enough to make informed decisions. The court will take the child’s wishes into account when making decisions about custody, but the weight given to the child’s wishes will depend on the child’s age and maturity.

Lawyer for Child Custody in Germany

A family lawyer in Berlin can play a vital role in protecting your rights as a parent, navigating the complexities of child custody law and advocating for the best possible outcome for your child.

We can explain your rights and responsibilities and help you understand the different types of custody (joint and sole), the decision-making process and the rights of the custodial and non-custodial parent.

We will also explain your obligations, such as child support and visitation rights, and ensure that you are fully aware of your legal position in the event of a dispute or custody modification.

If you are involved in a custody dispute, particularly a contested custody case, our solicitor can represent you in court. We will prepare your case, gather evidence and present arguments to support your claim for custody. This is particularly important in complex cases, such as those involving allegations of neglect, abuse or where there are concerns about one parent’s ability to care for the child.

Our firm can also help you negotiate a custody and access agreement with the other parent, with the aim of reaching an amicable agreement outside of court. This may involve mediation or direct negotiations between the two parties, with your solicitor advocating a fair and workable agreement. By involving a solicitor in the negotiations, you can ensure that any agreements made reflect your interests and are legally sound.

Contact us today to discuss child arrangements and ensure the best possible future for your child.

International child custody in Germany

​International child custody cases in Germany are governed by national laws, EU regulations and international treaties to protect the best interests of the child. The main legal frameworks are the German Civil Code (BGB), the Brussels IIb Regulation (EU law) for EU-wide custody cases, and the Hague Convention on Child Abduction (1980), which prevents the wrongful international removal of children.

In cross-border custody cases, the child’s habitual residence usually determines which country has jurisdiction. If the child lives in Germany, German courts will usually deal with the case. If another EU country is involved, the Brussels IIb Regulation applies, which ensures cooperation between courts. For non-EU countries, international treaties or bilateral agreements determine jurisdiction.

If one parent wants to move a child abroad, both parents must agree if they share custody. If one parent objects, a family court must decide on the basis of the child’s best interests, including emotional ties, stability and education. Unauthorised international removals can be challenged under the Hague Convention, which allows the child to be returned to his or her habitual residence.

Even if one parent is living in another country, they retain rights of access, unless restricted by the court for safety reasons. German courts can order personal visits, supervised visits or virtual contact (video calls, telephone calls) if physical meetings are not possible due to distance or legal barriers.

Custody orders from EU countries are automatically recognised in Germany under Brussels IIb, making enforcement easier. However, decisions from non-EU countries require a recognition procedure before German courts before they can be enforced. This ensures that foreign judgments comply with German law and are not contrary to the best interests of the child.

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