Germany – no joy for joint custody

Posted on April 21, 2013 by

6


by Robert Whiston  April 2013

‘All that glisters is not gold’, and so it is with February’s news that fathers in Germany will henceforth get ‘joint custody’ even if the child’s mother objects.

Germany_picFathers will now be able to apply to family courts for ‘custody’ and mothers will only be able to block them if there are serious concerns for the safety of the child.

Previously, single fathers in Germany have always had to seek the permission of the child’s mother when they applied to be granted custody of their children. This somewhat feudal deference to maternal privilege has long been seen as unfair by father’s organisations. [1] 

With the announcement by Germany’s Justice Minister, Sabine Leutheusser-Schnarrenberger all that should now be banished. As she told the media:  

  • “Fathers [in Germany] will be in a much better position. The new custody rules reflect social change and the different types of family we have today.
    “The process will work quickly and without bureaucracy.”

Previous custody rules meant that mothers could deny joint custody applications by their children’s fathers with no effective appeals proedure.

No longer will it be enough for the mothers to simply say she does not want any contact with the father as the Child’s Best Interests is now the priority and if the court does not see any threat to the child it will automatically grant a father custody.

The Feb 2013 reform implements the Constitutional Courts ruling in 2010 which overturned the then law which stated that a father cannot get joint custody (a law also criticised by the ECHR).[2] 

Reality Check 

Welcome though any advance is, there are limitations to this new announcement.

Firstly, this new law only applies to unmarried fathers, and secondly what is happily referred to as ‘joint custody’ is really only ‘joint parental responsibility’ This brings all the pains but  none of the  gains, i.e. financial obligations but no paternal custody rights as such and certainly no ‘shared parenting’ as it is known in the Anglo-Saxon world.

Even German legal journals and websites, e.g. http://moser-law.com/faq.htm#custody, slip easily into the linguistic trap of assigning ‘joint parental responsibility’ as if it were joint custody or shared custody. To clarify, the paternal custody rights they refer to are what we would call the somewhat empty vessel known as ‘parental responsibility’ rights.[3] 

UK comparison

In the UK, Parental Responsibility is defined at the government’s website. [4] There it states that: 

  • “ALL mothers and most fathers have legal rights and responsibilities as a parent – known as ‘parental responsibility’.
  • If you have parental responsibility for a child you don’t live with, you don’t necessarily have a right to contact with them – but the other parent still needs to keep you updated about their well-being and progress.”
  •  “A mother automatically has parental responsibility for her child from birth.
  • A father usually [meaning not always] has parental responsibility if he is:
  1. married to the child’s mother
  2. listed on the birth certificate (after a certain date, depending on which part of the UK the child was born in)
  3. You can apply for parental responsibility if you don’t automatically have it.” [this does not mean you will get it]

While we may be disappointed at the degree of German progress it is, as it stands now, currently ahead of the situation in Britain.

In Britain if you are not married you have no parental responsibility and no right to see the child through contact visits. Therefore, a father then has to apply to the courts. Though this is normally granted it is not guaranteed and can trigger a life time of conflict and disappointment

In the UK 95% of custody awards are to the divorced mother giving her ‘residence’ and the father only has a right to “contact” this child. Thus married and then divorce fathers are no better off than unmarried fathers in the rights they are deemed to have been gifted by the state.

Some sources put the level of legal joint custody – which is the equivalent to Britain’s sole-mother-custody model, with residence and contact – in Germany at only 13% and in Italy at 90%., but in practice it is about 4% and  1% respectively.

Clearly something is getting lost in translation and a common standard with common terminology is urgently required.

Conflict

So what are we to make of the frequently heard allegation that ‘family conflict’ makes joint parenting impractical ?  

Prof. Roland Proksch (based in Nuremberg) is one who would not agree with that attitude. Proksch torpedoes that chestnut of an  excuse for inaction. In his study for the German Justice Ministry he concludes that: [5]

  •    “. . . obtaining joint parental custody has a high symbolic and psychological value.”

This is something both the German study and the much earlier Law Commission Working Paper No 96 [6] from the 1980s have in common.

Secondly, he concluded that where there was parental conflict joint custody actually helped:

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

Footnotes:

[1] Feb 5th 2013 http://germanherald.com/news/Germany_in_Focus/2013-02-05/2261/New_Dad_Law_Gives_Joint_Custody

[2]  See “Germany – good news, or is it ?” (Aug 2011) http://equalparenting.wordpress.com/2011/08/19/9/

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