What rights do fathers have when separating from their partner? This is the situation in Germany

If, after separating from their partner, the child’s mother deliberately places obstacles in the way of the child’s custody and access, fathers have difficulties. This is particularly problematic for unmarried couples. Critics of this state of affairs have been fighting for years to improve the situation in Germany. Changes can already be seen in some other European countries.

Michael Friedrich (name changed by the editors) does not know whether he can still fight for his son. The 28-year-old fears a long, exhausting court dispute, that his child will suffer and that it will also finish him off mentally.

The last time he saw his now three-year-old son was a year ago, on Christmas Day 2020, when he was able to briefly play with the child at his former partner’s house. Since then, the mother has prevented all contact, says Michael Friedrich.

The man separated from his partner when she was pregnant, before that things had been going well for many years. Before the birth everything changed and the couple separated. The 28-year-old found out about the birth of his son only after a week. After many conversations, he was assured that he could have contact with the child once a week – for three hours in the garden of the mother’s parents. She did not allow more. Now she has completely cut off contact,” says the 3-year-old’s father.

How many men in Germany are affected?

Many men in Germany are experiencing the same thing as Michael Friedrich. Every year there are about 56,000 court cases concerning child contact rights. After a separation, the parents cannot agree on who is to care for their joint children to what extent. Because there are often several children involved, there is litigation involving nearly 100,000 children each year.

Fathers also have to fight to gain custody of their children so that they can, like the biological mother, decide, for example, what inoculations to give their child, what kindergarten or school he or she will go to and what he or she will do in his or her spare time.

The right to joint custody of a child from the moment of acknowledgment of paternity is regulated by law in many European countries, but not in Germany. The fight for this has been going on for a long time. “We demand that with the acknowledgment of paternity both parents be granted joint custody of their children. Automatically from birth, even if the parents are not married,” demands Markus Witt, board member and spokesman for the association Väteraufbruch für Kinder, in an interview with web.de.

In Germany, only the obligation to pay alimony is linked to the acknowledgment of paternity. “Fathers have to pay, but whether they have influence on the upbringing or how often they see the children is not clearly defined. If the mother doesn’t want that contact, they have to go to court.” – Witt criticizes.

Experts call for revision of child custody laws

Three years ago, an attempt was made to change the legal situation in Germany in favor of fathers. At that time, family law experts and psychologists advised the Federal Ministry of Justice on how to adapt custody and contact laws to the changed realities of life. The experts also came to the conclusion that unmarried fathers whose paternity is legally recognized should automatically have custody of their child from the moment of birth, just like the mother.

A year later, a draft law was presented by then Justice Minister Christine Lambrecht (SPD) – but it still did not say that unmarried fathers would automatically be granted custody. So if the biological mother does not agree to grant custody to the father, the father must still seek legal help.

This automatic award of custody is also opposed by the German association of single mothers and fathers (Verband alleinerziehender Mütter und Väter, VAMV). Joint custody is in the best interest of the child if the parents can work well together. “We think it is good when parents make a conscious decision that they want to care for their children together,” – says association president Daniela Jaspers. “If this is not the case, there is a good chance that there are valid reasons at play against joint custody, such as alcohol, violence or the fact that the parents hardly know each other.”

Jaspers also says it is difficult to make comparisons with other countries on this issue. The legal construction of child custody may be quite different there. In Germany, child custody laws govern what decisions parents make together and what decisions one parent can make alone – but not who takes care of the child or children and who takes responsibility for them.

What the federal government plans

The outcome of court proceedings to award joint custody often depends in Germany on the favor of the judge, says Markus Witt, adding that the situation has improved in recent years. “Only in very few cases does the father not get joint custody because the judge is still living in the Stone Age,” says a spokesman for the fathers’ association, adding that it also happens that such a right should not be granted to the father. But there are also cases where it is the mother who should not have custody of the child. “But this is not checked. So far in disputed cases it is always the father who has to go to court.”

Whether the new federal government will change anything on this issue remains to be seen. The press offices of its constituent parties refer to a coalition agreement that also mentions a planned amendment to family law. It stipulates that in the case of parents living together unmarried, it is likely that in the future it will be the mother who will have to go to court if she objects to joint custody, not the father. On the other hand, for parents who live apart, not much will change compared to the current laws.

Custody rights vs. child contact rights

Right to custody is one thing and right to contact with the child is another. The issue of how often the father (or mother, if the child lives with the father) has the right to see the child can also end up in dispute. In Germany, it is usually the case that the child lives permanently with one parent – usually the mother – and the other parent must determine how often he or she has the right to see the child.

The new coalition agreement reads that the government wants to improve counseling on parenting, divorce and family conflict and emphasize the alternate custody model meaning that both parents have the same rights and responsibilities after separation. If one parent were to spend less time with the child, it would have to be justified by the child’s welfare.

However, this does not mean that the alternating custody model should become the guiding principle. When asked about this, Philipp Geiger, deputy spokesman for the SPD party executive board, explains that the law is not meant to impose a specific custody model, regardless of whether the parents live together or apart. In cases where separated parents cannot agree on custody of their joint children, the dispute should be decided by a family court, taking into account the individual circumstances of the case and considering what is in the best interests of the child.

So it appears that the new federal government only wants to empower the alternate custody model in counseling, but not in law. And the Single Mothers and Fathers Association is skeptical about that, too. The plan to improve counseling in the areas of parenting, divorce and family conflict is generally viewed positively. However, it is critical of the fact that the mediator is to focus on the alternate care model.

Good counselling should enable parents to find the best model for their child, said the VAMV president: “Therefore, parents should be openly informed about the different options for maintaining contact with their child, their advantages and disadvantages, so that parents can decide which solution works best for their child and their individual life situation. The alternate care model is a good solution for some children and parents, but certainly not for everyone,” she added.

The custody model determines the amount of child support

The alternate custody model is not just about rights and responsibilities or the time parents spend with their children. It’s also about money. Because as long as there is no alternate custody model, fathers (or mothers) with whom children spend less time pay child support in full – even if they care for the children 49% of the time.

“So the cheapest option for me would be to not take care of my child at all and just pay child support. The most expensive option is one where I take care of my child 49% of the time, have a children’s room, buy clothes and food, and still have to pay child support in full,” explains Markus Witt from the association Väteraufbruch für Kinder. “This is a completely distorted system, something has to change in this regard. Maintenance law should also create incentives for shared parental responsibility, not hinder it.”

Federal Family Ministry advisory council proposes new alimony system

There is nothing specific about this in the coalition agreement. However, the Federal Family Ministry’s advisory council proposes a step-by-step model. Alimony could be paid in full by those who have custody of the child for up to a third of the time, then the amount should gradually decrease, and when both parents have equal custody of the children, then the provisions of the alternating custody model should apply.

But these graduated models won’t eliminate conflict situations either. Even the advisory board warns of the danger of “mathematization.”

Markus Witt also warns against introducing such a system. In his opinion, it would lead to more lawsuits regarding the right of contact and would put an even greater burden on children and parents. What is needed is a system that incentivizes care, not just getting more money.

The role of the father has changed

The Federal Family Ministry’s advisory council is clear on one point: “There is a need for far-reaching reform to entrench the joint custody model in our legal system.” One reason is that the image of the father has changed. “Many fathers are increasingly concerned about being actively involved in their children’s lives.”

Michael Friedrich would also like to be more involved in the process of raising his son. He is convinced that as a father, he can better support his child’s development of certain skills. This is scientifically proven. If fathers do not participate in the parenting process, it often does not go unnoticed by the children. For example, studies show that children, especially boys, who have speech problems or ADHD, are predominantly raised without a father.

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