GERMANY Law and Practice Contributed by: Marie Baronin von Maydell, Sophie Beckers, Sarah Schreinemachers and Rebecca Mohr, MAYDELL FamilyLaw
has his or her habitual residence in a third country that is neither bound by the Brussels IIb Regulation nor a contracting state to the 1996 or 1961 Hague Conven ‑ tions, German autonomous conflict-of-law rules apply. International jurisdiction in proceedings concerning parental responsibility or access is governed by Sec ‑ tion 99 of the FamFG. According to this provision, German courts have international jurisdiction if the child: • is a German national; • has his or her habitual residence in Germany; or • requires the care of a German court. However, it should always be noted that, in accord ‑ ance with Section 97 of the FamFG, EU regulations and provisions of international treaties take prece ‑ dence over the provisions of the FamFG, as outlined above. 3.2 Living/Contact Arrangements and Child Maintenance When married or unmarried couples separate, joint parental responsibility continues even after separa ‑ tion and, in the case of married couples, after divorce. However, joint parental responsibility does not auto ‑ matically arise between unmarried parents; it requires either a joint declaration by the parents or a court decision. Once established, joint parental responsi ‑ bility remains unchanged under German law. A court procedure is only necessary if one parent applies for sole parental responsibility. Family Court Decisions on Child’s Living Arrangements or Access If the parents cannot agree on the child’s living arrangements or access, either parent may file an application with the Family Court, which examines the case based on the child’s best interests (Section 1697a of the BGB). Factors taken into account are: • continuity (geographical and personal); • tolerance regarding a good relationship between the child and the other parent; • parenting skills and the ability to promote the child’s personal skills; and • the child’s will.
As part of the proceedings, the Youth Welfare Office ( Jugendamt ) prepares a report, and the court appoints a guardian ad litem, who acts as the child’s repre ‑ sentative and explores solutions that are in the child’s best interests. The court may also consult experts, if necessary. Finally, the judge must hear the child (irrespective of the child’s age) before making a deci ‑ sion, giving appropriate weight to the child’s age and maturity. Overall, the court can only make decisions regarding a child’s living arrangements or access with due regard to the child’s best interests, and may not intervene in the child’s upbringing if there is no risk to the child’s welfare or no application from the parents. Relocation If one parent wishes to move away with the child in a situation of joint parental responsibility, and if they cannot reach an agreement with the other parent, the court must decide. In doing so, the court will examine solely whether it is in the child’s best interests to live with the parent who is remaining behind or with the parent who is moving away. As a result, the court will transfer the authority to decide on the child’s habit ‑ ual residence to one parent as part of their parental responsibility. Child Maintenance Under German law, only the minimum needs of a child are expressly defined by statute (Section 1612a of the BGB). These minimum needs are based on the minimum subsistence level for tax purposes, which is determined every two years by the Federal Govern‑ ment in its report on the subsistence minimum. The child’s needs increase with age. The statutory minimum needs of a child form the starting point for the so-called Düsseldorfer Tabelle . Although it is not legally binding, the Düsseldorfer Tabelle is widely and consistently applied throughout Germany and serves as the central practical refer ‑ ence for calculating child maintenance. It divides the net income of the maintenance-obliged parent into 15 income groups and provides guidance for children over the age of 18 who are still living with their parents.
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