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Created on Sunday, 12 September 2010 16:39

Last Updated on Friday, 08 February 2013 17:28

When a Parent Heads Abroad Who Will Have the Say Over the Children?

And who can answer this question better than the Federal Court of Justice with its decision of April 28, 2010 (re XII ZB 81/09).

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Harry and Sally did mange to get married but later only to have it end in divorce. Well, Liva Katharina came out of the marriage. Since the split up of her parents, she has been living with mom. Sally is a freelancing communication scientist. Harry is self-employed.

Sally is planning to relocate to her new lover in Mexico. Her boy friend is a well-off fashion photographer and construction professional. He owns a house on a large piece of land, where he wants to open a vacation resort with Sally. Sally also wants to assist in the construction business. Harry is not at all amused with Liva Katharina moving to Mexico. He fears a drastic reversal in his relationship to his daughter and generally considers the plans of his ex everything else but amusing because she merges her private and professional fate to her boy friend.

So, the next time of this divorced couple met was in the family court at AG Starnberg where they submitted opposing applications for the right to determine the child's domicile. The lower court, following the recommendations of the Department of Childrens' and Young Peoples' Affairs, denied the permission to relocate with Liva Katharina to Mexico. In the next higher court, the OLG Munich, Sally got her wish. Harry did not take that decision lying down and appealed to the BGH where he continued to apply for sole custody of the child.

What had the parents applied for? Sole custody of their joint child. Pursuant to §1671 BGB, custody is to be rewarded to only one parent when it is to be expected that this will be to the best of the child. However, subsection III of §1671 BGB determines that such application is not be followed when other provisions of the law determine that this decision is to be made on different grounds. This can be especially in the case of endangerment of the best interests of the child (§1666 BGB). Such endangerment cannot be seen in this case. Sally had announced her plans to Harry more than a 1 ½ years prior to the planned relocation. In other words, Sally was not just "stealing" their daughter from him.

Since Harry refuses to give his permission for Liva Katharina to relocate with her mom, then Sally's wish can only be fulfilled when she has the full right of personal custody (§1631 I BGB). This dispute (as well as the legal question) is to be decided based on the best interests of the child. The general right of a parent, willing to relocate does not generally prevail the right of the non-relocating parent. The wish to relocate only becomes relevant when it turns out to be to the disadvantage of the child.

The BGH held that this dispute is to be settled with an "intermediary decision". Therefore the applicability of giving custody of each parent is to be weighed against the reasons to leave Germany. Most relevant are the parent's personal aptitude and the quality of the parent-child-relationship. Further criteria will be the child's citizenship, acquaintance with the language and culture in the target country. When the parent wanting to relocate has a significantly better way of life then right of contact with the child will have to step back as a "weaker" right. However, the right of custody is not generally "stronger" than the right to have contact with the child because both parents have equal rights and responsibilities to the child (art. 6 II 1 GG). The personal relationship to the parents is so important that a change of custody can only be considered when the relationship to the parent "left behind" remains intact. No parent is to deprive the child from the other parent. It is to be demanded that the relocating parent has to show convincing reasons for the move.

The Federal Court of Justice considered that both Harry and Sally are generally capable of raising their child. Sally was permitted to head to Mexico with their child. She was Liva Katharina's main parent prior to and after the divorce. Harry having just started a new business was pretty much tied down by this and would need the help of third persons to raise the child. On the other hand, Liva Katharina has become acquainted to her new home during vacation trips to Mexico. She is already taking private lessons in English and Spanish. Visiting an English language school is simultaneously a challenge as well as a chance. Sally just can offer more possibilities and more care than Harry. Besides, the parents had negotiated a comprehensive contact during vacations of 57 days per year. In the light of this circumstances, the restraints for the father can be accepted. The child has learned to write eMails and use means of telecommunication. In an interview with the judge, the court came to the opinion that Liva Katharina is brilliant child that can manage having one parent living abroad. She also likes her step-father, has made some thoughts to her situation and can cope with them. It could not be perceived that the mother had a dominant influence on the child.