The children must also be heard in the custody dispute

The children must also be heard in the custody dispute

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BGH clarifies requirements for shared care of separated parents
(jur). Separate, unmarried parents generally have to exercise joint custody of their child. Only if there are concrete facts that the best interests of the child are endangered can the sole care of one parent be preferred, the Federal Court of Justice (BGH) in Karlsruhe decided in a recently published decision of June 16, 2016 (file number: XII ZB 419 / 15). When examining whether the child's welfare is endangered, it is generally not possible to do without hearing children under the age of 14.

In this specific case, an unmarried and separated father had applied for joint custody of his daughter, who is now six years old and lives with the mother. There was no declaration of care for the child. An older son, born in 2000, lives with the father. There is a common custody declaration here.

However, the mother refused to take care of the daughter together. Your ex-partner blocks all communication. She also receives no information about the older child.

The youth welfare office considered both parents to be very sensible and reasonable. A common concern could not work, however, because the parents argue in court over every little thing. The mother is afraid that the father will take the child away from her. If the mother is solely concerned, the father fears handling problems with the child.

The Higher Regional Court (OLG) Brandenburg awarded the father the common concern for his daughter. In its decision of August 3, 2015, it emphasized that a mother could not claim sole care with the argument that she could not talk to her ex-partner (Az .: 13 UF 50/15; JurAgentur announcement of September 4 2015). Basically, separated parents would have to get involved in the common concern. The Brandenburg judges, however, only made their decision in writing without a personal hearing from the parents or the child.

The BGH now overturned the OLG's decision and rejected the procedure for re-examination. The Karlsruhe judges made it clear, however, that preference should generally be given to caring for a child together. What is crucial is how the best interests of the child can be ensured. "The concern is to be transferred to the parents together by the family court (...) even if it cannot be determined whether the shared parental care corresponds better to the child's well-being than the sole care of the mother," the decision continues.

The BGH demanded that there are concrete indications that the child's well-being is at risk if there is a common concern. The parenting suitability of the parents, the child's ties, the consequences of the transfer of custody for the support of the child and also the child's will would have to be examined.

However, the mother's rejection of the common concern does not yet speak against it. However, if the parents have a "serious and lasting disruption at the communication level", so that "considerable stress on the child" is to be feared, this could be a reason for sole care by only one parent.

The OLG must now check this again and listen to the parents. Children under the age of 14 would also have to be listened to on a regular basis in order to determine ties, inclinations and willingness to have children. This also had to be made up for. Only in the case of particularly young children or children who cannot express their will can the hearing be dispensed with. fle / mwo

Author and source information

Video: How Much Will a Child Custody Dispute Cost You? (May 2022).


  1. Morold

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