Germany’s unmet demand‎‎

Posted on January 24, 2013 by

1


by Robert Whiston    Jan 25th 2013

‘Shared Custody in Germany’

WARNING: this is an uncollaborated article and may not fully reflect the true situation in Germany. It is taken from “Shared Custody” http://www.humanrightsaction.org/vaeter/shared-custody.html.      To acquire a background to the  situation in Germany  divorces numbered 73,418 in 1960. This climbed to 103,927 in 1970 and rose to 141,016 by 1980.  By 1990 the divorce rate was about 40% with 154, 786 marriages being terminated. In the years after 1980 more than 100,000 children p.a. were affected by divorce. By 2005 the number if  children impacted by divorce was  156,389. German custody laws were altered in 1998 and whereas 39% of  contact agreements were made outside the court in 1999, this rose to  70% in 2001.

Germany has always a bit of a ‘black hole’ on the world stage when it comes to custody practices and shared parenting. It’s a problem also encountered when searching for data and statistical information on other topics such as false allegations, sex offences, gender violence etc.

Perhaps this is partly due to German culture or very few German sites thinking to have a “translate” option into English – which has a ready-made world-wide audience. This reticence may reflect the German preoccupation with all imparted TV series and programmes having to be dubbed into German before broadcasting.

To correct this disadvantage it is pleasing to see a divorce/custody study, written in English, brought to our attention by Prof. Roland Proksch. Based in Nuremberg, Roland Proksch first trained as a lawyer in 1980 before training in US-style Prokschdivorce / custody mediation techniques.[1]

Left: Prof. Roland Proksch

This seems an admirable combination for reducing stress in divorce and introducing fairness but one has to caution against mediation as it is practiced in some parts of the US.

Stolen Vows” by Judy Parejko, (pub 2002), is a salutary lesson written by an experienced US divorce mediator of how the process can be bent to the whims and fashions of a newly created divorce industry. She relates how mediation can be perverted to be merely a tool of the court to reinforce its preoccupation with speedily separating assets and children (for a summary see, for instance, http://www.stolenvows.com/review.htm ).

Prof. Roland Proksch writes that in the first representative study of divorced parents and their children in Germany (May 30, 2003 ?), the new law appears to be effective. Commissioned by the Federal Ministry for Justice, the Nuremberg law professor, Roland Proksch, interviewed:

  •  all family judges at local and higher regional courts in Germany
  •  all youth welfare offices as well as
  •  all lawyers who were members of the Family and Inheritance Law work group.

In all more than 7,600 divorced parents were also asked as to how they, for example, have organized parental custody, how access rights have been managed or even whether they are satisfied with their maintenance payments and much more besides

This Ministry for Justice study found that:

  1.  Joint parental custody integrates children and parents
  2.  Secures their maintenance
  3.  Provides mothers with more opportunities to work
  4.  Sole parental custody excludes the disposed parent and puts the rights of the children to both parents and to access in jeopardy

These results from the study are seen as “alarming facts and figures” and it calls upon family courts and youth welfare offices to act upon them.

We are grateful to for the following commentary by Prof. Roland Proksch which is here paraphrased:

  • “Separation and divorce are a major life event both for parents as well as for their children. And if no satisfactory settlement can be found after a divorce, in particular, in respect of access and maintenance, there is bound to be considerable argument. This places a burden on parents and children alike – often throughout their lives.”
  • “The new law on parents and children, which has been in effect since 1998, has the effect of lessening conflict. It is said that it provides considerable relief from burdens for both parents and their children. It has been possible for the first time to provide scientific confirmation of the supposition, which, however, has been expressed to date only by specialists, that joint parental custody has the function of benefiting both parents and particularly their children.
  • After four years of intensive research work, there are now available the results of the first extremely comprehensive and representative scientifically based study on the situation of divorced parents in Germany.

Another caveat

All this would be most commendable and serve as a beacon for others to follow were it not for the fact that Germany has arguably the biggest and best organised Father’s Movement indicating that despite what may follow in the text theory may not adhere to practice. Therefore when Dr. Proksch uses the phrase that the “new law appears to be effective” it should be taken under advisement. 

  • Addendum: Unfortunately, I have to contradict some of my sentences in this article. From my contacts inside the German fathers; movement it would seem that “joint custody” and shared custody are only loose translations.
  •  ‘Gemeinsame elterliche Sorge’, or geS translates as ‘joint custody’ and aeS translates as ‘alleinige elterliche Sorge’, or sole parental custody.
  • It may be due to a desire to comply with “Article 8” that the term ‘joint custody’ or ‘shared custody’ has been adopted by Germany and several other EU countries but it is no more indicative of custody practice than the UK’s term of ‘shared parental responsibility. In fact, in UK eye’s, the British version is the more accurate as it denotes the automatic financial responsibility of a father in law but not any of the custody rights one might previously have expected. Having said that several post-1990 European academic papers speak of “shared parental responsibility” when dealing with custody matters.

Four pressing topics for divorcing and divorced parents

As itemised above the study was commissioned by the Federal Ministry for Justice and Prof. Roland Proksch, interviewed family judges (in local and higher regional courts), and youth welfare offices as well as lawyers involved in Family and Inheritance Law work.

Dr. Proksch reveals that of the 7,600 + divorced parents who were asked how they, for example, organised parental custody, how access rights were managed and much more besides, including whether they were satisfied with their maintenance payments (UK = CSA).

  • “I was very surprised at the enormous response. After all, the parents voluntarily work through a 24-page questionnaire twice.”

Detailed personal discussions with divorced parents and their 131 children of all ages completed the practical study.

Just how very critical the topic of separation and divorce were to those concerned became a vivid discovery for Dr. Proksch in both the personal discussions and the telephone conversations he made with parents:

  • “We received more than 1,500 calls alone on the two specially set up hotlines. These were, however, originally intended merely to answer questions relating to the survey. In the course of the investigation, not a few of those affected called and described their situations in insistent terms.
  • “Almost all divorced parents were even prepared to surrender their anonymity and gave us their and gave us their telephone numbers, including their mobile numbers. Many parents couldn’t even believe it, saying, “At last, someone who’s asking us, someone who’s interested in our situation !”

Separation and divorce, Proksch observes, are a major life-changing event for both parents and children. A dice is rolled and all their fates are suddenly in the “lap of the gods.”

And if no satisfactory settlement can be found after a divorce, in particular, in respect of access and maintenance, there is bound to be considerable amount of argument [this can, one suppose, then lead to claims of domestic violence which has been a fashionable cry for many years – RW].

This unsatisfactory state of affairs then places a burden on parents and children alike – often throughout their lives and/or into adulthood.

From what Proksch deduces, joint parental custody integrates children and parents more satisfactorily – and the new 1998 law facilitates this.

Sole parental custody [the model presently used in England and most Anglo-Saxon countries – RW], he observes as excluding the disposed and dispossessed parent while at the same time jeopardising the rights of the child to access both parents.

Joint custody is clearly better

In Proksch’s own words, “The results of the study are telling.”

He was able to demonstrate that there is not, in fact, a conflict of ‘mothers against fathers’, but conflicts arising between two parents with whom their children live and those with whom their children do not live [if that makes sense – RW].

  • “It is extraordinarily striking that there are considerable conflicts in those cases of divorce in which one parent has obtained sole custody and the other has not.”

Dr. Proksch is convinced that the “disposal” of one parent by the sole act of transferring sole custody to the other parent gives rise to considerable tensions. Reiterating the negotiating position of the ‘Equal Parenting Coalition’ of 2002 in their talks with the Lords Chancellor’s Dept Proksch concludes:

       “. . .  because if joint parental custody is obtained, there isn’t a “loser.”

Parental conflicts

How often have we heard that shared parenting is all well and good but it will never work where ‘high conflict’ exists within families. Proksch torpedoes that lame excuse for inaction:

  • “Particularly when there is parental conflict, joint custody is clearly better: it benefits the children.”

 Self-evident truth

If a truism is an adage that alters not over time and circumstances then the conclusions of the Law Commission’s Supplement to Working Paper No 96, [2]  is echoed in this German study.

Both the German study and Working Paper No 96 state that “obtaining joint parental custody has a high symbolic and psychological value.” The more so for the parent (father), who has been regularly and routinely disposed of his worldly goods and wealth in earlier court appearances.

Although the other parent [i.e. non-resident father], may only be allowed to intervene peripherally, e.g. in the child’s education, this does however promote the basis for satisfying discussion behaviour on the part of both parents. Thus the parents are required to do something – if only at a minimal level. Dr. Proksch then notes:

  • “Those parents with joint custody regularly engage in this [behavioural pattern]. And, in any event, this involves three-quarters (75%) of all divorced parents.”

Dr. Proksch is able to demonstrate that these effects can be ascribed to joint custody – and not only for “pacifist” type parents who have joint parental custody. Too many academics have no children of their own or have not been divorced and find it quite impossible to understand that animosity aside Mothers and fathers in the vast majority of cases want only what is best for their children.

It is the urge of salvaging what they can from the train wreck that is divorce that propels many parents, male and female, to acquiesce when offered sole residency as the custody award – not knowing the down stream calamities that await their children. 

The custody battle

In Germany about one-third (33%), of the interviewed parents with joint custody entered their divorce proceedings with an application for sole custody, and with 14% fighting for it until the court rejected their application [we don’t even have those figures in Britain – RW].

With hindsight, writes Proksch, it is possible “to ascertain positive effects even for these parents who thus had to accept joint parental custody against their will”.

  • “It is stated that joint parental custody [3] requires father and mother to be responsible even after their divorce and that this benefits their children.

It thus reduces oppressive and often highly emotional conflict plus eliminates expensive court proceedings to a vast degree.

It is also stated that joint parental custody promotes cooperation on the part of the parents in questions of a consensual post-marital settlement and of access which benefits the child.” [all key factors put to the LCD in 2002 and in every subsequent submission thereafter – RW].

Reliable CSA payments

In what an only be described by fathers groups as a vindication of all they have been saying when lobbying government the German experience is that CSA payments exceed levels of 93% where fathers have joint/shared custody.

Dr. Proksch describes his results for maintenance payments as “astonishingly clear.” Unaware perhaps that 20 years ago the same or similar high levels were revealed in US data (David Popenoe, 1996), [4] and were hinted at in the Uni of York (UK) study by Bradshaw, Stimson, et al, 1997. [5]

Of those parent who were ‘obliged’ to pay maintenance (fathers in the main), Dr. Proksch could categorically state that “joint custody leads to reliable maintenance payments.”

Against a backdrop of every judge and lawyer knowing endless stories about unpaid child maintenance [CSA], Dr. Proksch was able to uses facts to demonstrate that ‘joint parental custody’ leads to almost 100% payment of maintenance.

  1. 93.5% of fathers with joint custody who are obliged to pay maintenance state that they paid child maintenance
  2. This is confirmed by 87% of mothers stating they received the CSA payments

Differences in response between the 2 sexes is common but only a recently accepted feature of this area o study – for examples see http://robertwhiston.wordpress.com/2008/05/09/8/ (Ref:  Table, a). “Bradshaw & Millar (1991)” contrasting with b). University of York findings 1997).

Dr. Proksch described this high level of correlation as ‘impressive” adding:

  • This result is also supported by a study carried out by the Federal Ministry for the Family: there is a clear connection between joint custody and regular maintenance payments.

Quoting again from the report and its conclusions:

  • “It is very striking that, considered in percentage terms, three times as many children of parents with joint custody live with their fathers (!) as children whose parents have sole custody.
  • These [joint custody] children have regular visiting contact with their mothers. It appears that it is precisely these parents who take account of their children’s needs, do without fixed visiting times and have found flexible and individual solutions for access and visits for the benefit of their children.” 

Sole custody

This form of child allocation has the effect of dispossessing the “disposable” parent. It leads to the boycotting of access in many cases, poor CSA payment patterns and an increase in the number of oppressive court cases.

The “disposable” parent looses his or her franchise as a parent, as part of a family and as a human being, but this has failed to cut any ice with policy makers.

Much has been written about these consequences but few female authors have seriously considered that the dispossessing of mothers rights as was common in the 18 century and less so in the 19th century. Instead of increasing the sum of human happiness they appear hell-bent that the same treatment should be righteously visited upon men as a revenge. The perfectly reasonable excuse for the 18th and 19th century was that mankind knew no better. That excuse is not reasonably available in the 20th and 21st century when we all know a lot more.

They would be horrified to see women get only 5% of custody awards or spend only 2 weekends a month with their child and have no control over the father and child moving to another part of the country or continent.

As practiced, sole parental custody creates “losers”, it squeezes out the “disposed” parent from his child’s family life (as it is mostly fathers thus affected). Not unreasonably this results in annoyance, deep injury and unnecessary trouble.

In contrast to all the publicity highlighting how much mothers feel let down by fathers not turning up to see their children the actuality is quite the reverse. Dr. Proksch’s research found that in many cases the parent with sole custody opposes the access right of the other parent.

“Access” entitlement (visitation) is often and effectively torpedoed by the parent with sole custody and is often exacerbated by the arrival of a new partner. When it is the mother who has a new partner she resents being reminded of her former spouse caused by ‘access’ visits. On the other hand, when it is the father who has ‘a new partner’ jealousy or resentment is rekindled because of the new women in his life

The longer this dispossession and loss of enfranchisement lasts the lower are the chances of implementing access rights. The parent blocking constructive access can in effect “sit back and let time do its work”.

  • What is really shocking is that parents with sole custody admit that “they themselves no longer want contact with the other parent”. The needs of the child, whom both parents clearly love” [and should be put first – RW], are thus ignored.

In the face of such maternal truculence German courts and no different from British ones and appear to be powerless. These parents hardly need to fear judicial sanctions, such as compulsory execution or mediation. Although these measures are “theoretical options”, they can, however, only seldom be successfully implemented in practice.

Germany’s fatherland mentality can combine with German maternal truculence and elongated legal processes to create truly global complications and strain international relations, leading Proksch to comment:

  • Events that sometimes lead to diplomatic complications on an international basis are nothing out of the ordinary in Germany ! In addition, there is the long duration of the access proceedings serves the intentions of the parent who is boycotting access. Legislation is needed here.

Sole custody, notes Dr. Proksch, thus increases the number of oppressive court cases and goes a long way to prevent satisfactory communication and cooperation on the part of the parents.

  • “Access rights to benefit the child are difficult and desired reliable maintenance payments are, unfortunately, the exception here. There are facts to demonstrate this too: although about 88% of the fathers obliged to pay maintenance state that they paid child maintenance, only just under 67% of the mothers who are entitled to maintenance were able to confirm this.

Terminating contact

It took 30 years for the UK government to accept in a Green Paper the figure of 40% of fathers losing contact with their children 3 year  after divorce or separation. In Germany the numbers are similar. Dr. Proksch states German figures in these terms:

  • “More than 40% of the mothers and fathers who do not have parental custody but have entitlement to visit have only seldom contact or no longer any contact at all with their children” (see the Uni of York (UK) study by Bradshaw, Stimson, et al, 1997. http://robertwhiston.wordpress.com/2008/05/09/8/).

Sole custody which squeezes out. the other parent who has only contact rights from the life of the child is therefore deemed a model that runs counter to promoting children’s rights and interests.

There appears to be an inference in German law that children’s voices and be heard by the courts but it is not at all clear that this actually happens, i.e. “an obligation in matters of divorce.”

Dr. Proksch calls attention to the resulting dangerous trend in Germany, namely that:

  •  “The termination of contacts regularly increases year by year by almost 10% !”

Out of touch lobbyists

How often have we heard on the feminist driven Woman’s Hour or current affairs programmes that shared parenting will not work and is too complicated? Only last week Dame Butler-Sloss, past president of the family division, said in a Channel 4 TV interview that ‘equal parenting’ was never going to happen. Was that a threat or a promise ?

The level of ignorance among the professional classes is appalling in the UK and it may not be too dissimilar in Germany. Bigoted and outdated prejudices abound.

Dr. Proksch’s comprehensive study also examined the compatibility of the various professions and of families after divorce. He investigated the experiences of parents with a). the youth welfare offices, b). children’s lawyers, c). of those judges interested in further training, d). inquired about the contacts of the affected children with their grandparents and asked the question “What is the actual situation as regards the compatibility of profession and family after divorce ?”

Here too he found there was a strong argument in favour of joint parental responsibility with the following 4 points standing out as significant.

  1. “We established that mothers with joint parental custody more often have employment than mothers with sole custody. For this reason, they have, of course, a higher income.”
  2. The logical result, quite clearly is that mothers with joint parental custody (shared parenting), thus assess their own situation more positively than mothers with sole custody.
  3. However, the financial situation of many divorced parents with children who are minors is extremely difficult and burdensome, irrespective of the form of custody.
  4. “The absence of care facilities for children, the difficult situation in the labour market and the expectations of the working environment make it difficult for mothers and fathers to take up work.”

Personal interviews

Dr. Proksch then carried out personal discussions with parents and their children. In all there were personal interviews with 131 affected children of divorced parents

Although his personal discussions with the children of divorced parents were able to illuminate only a small part of their reality after their parents’ divorce, however, they confirmed the results of the study.

  • It comes as a relief to children when both parents give them the feeling that contact is promoted and expressly desired by both parents.

Arguments between parents placed a burden on children because children were often unable to recognise what is or was the actual cause of the argument.

It becomes even worse for children when they are then introduced into the argument or are even expected to take sides. This last observation takes the reader into a whole new dimension of “parental alienation.”

  • Young persons in particular often feel that this issue is a “power game” on the part of their parents, leaving them then subject to conflicts of loyalty. They said that it was really bad for them when their parents’ financial problems became involved. And brothers and sisters will often form a party of their own, quite possibly in opposition to both parents.

Conclusion

Proksch sees sole parental custody to mothers as a non-starter. Instead he demands legislation for the enforcement of children’s rights to both parents and to access both parents.

  • “I can only make the urgent appeal to all family judges to have recourse to transferring sole parental custody to mothers or fathers only in cases of need.”

In making his appeal it can be inferred that he sees family judges as unclear in their duties or an actual hindrance to the welfare of the child.

Referring to instances where family judges have recourse to transfer sole parental custody to a mother or a father where a “need” is alleged and communication between the parents is not possible, Proksch makes this urgent appeal to all German family judges:

  • “Since parents must nevertheless agree on access regulation and must also communicate, this argument is not convincing.”

Not surprisingly Dr. Proksch promotes his own niche market of mediation. He recommends legislation that supports counselling offices and other provisions before appearances in court, such as mediation (out-of-court facility for settling conflicts), which should also enjoy preference in terms of fees charged. Having said that, it is more or less the approach hinted at by the British government’s latest list of Green papers.

  • “It simply cannot be the case that state support is limited to legal aid. Out-of-court facilities for settling conflicts ought to be supported at least on a comparable basis – namely for the benefit of the children.”

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Footnotes


[1]. A lawyer specialising in family law and who later trained in the U.S. as a mediator (1988/1989), with special emphasis to economic and employment dimensions.

[2] ‘Supplement to Working Paper No. 96’. by J. A. Priest and J. C. Whybrow, Pub. Law Commission 1987 (UK).http://lawcommission.wordpress.com/1986/10/01/00001/

[3] This can be taken to mean ‘alternating residency’ or ‘shared residency’.

[4] “Life Without Father’, 1996, by David Popenoe. This US sociologist found relationships between family structure and crime to be so strong that it erases the relationship between race and low-income and crime (book review – compelling new evidence that fathers being marginalized and fatherhood and marriage are indispensable for the good of children and society – for résumé see http://www.spig.clara.net/book-rev/popenoe.htm).

[5] See “Non-Resident Fathers in Britain”, Bradshaw, Stimson, Williams & Skinner (Uni. of York, SPRU). Interim Report 1997. See http://robertwhiston.wordpress.com/2008/05/09/8/

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