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Child custody, proceedings, judicial transfer


DR. JÖRG SCHRÖCK


Custody proceedings

for the transfer of sole custody

  • What happens in custody proceedings?

Before courts in the > Custody, parents are encouraged to seek out-of-court solutions (> Parental conflicts in court). The principles > Parent responsibility and > In the interests of the child, the area of ​​tension in which every family court proceeding is formed in > Childhood things are moving.

In the case of one > Divorce remains an existing one care untouched. Unless one of the spouses poses in the -> Divorce proceedings expressly > Custody application (> Ancillary matter application). Only then will a court decision on the maintenance or dissolution of the common custody in a Custody proceedings like. In practice, typical reasons for a custody process

  • argument around stay the children after separation failed marriage >here
  • argument to have custody of (only) physical father after a clever, non-married life >here
  • Further Armed potentials >FAQ to the parents conflict

Often, with this potential for conflict, it is often the case that not both parents are sufficiently worried about the negative consequences of their parents ‘conflict on the well-being of children‘s parents’ conflict. The separation is mostly "fresh" and not yet > processed". The focus is on separation-related injuries at the parent level, which rub off on the child level: sometimes children even against the ex-partner "instrumentalized". In contrast to this is the legal mandate to the parents: The care is to exercise for the welfare of the child (§ 1627 p. 1 BGB). In common care In case of disagreements parents have to try to agree. In § 1627 S.2 BGB stands "have to" and not only "should". If the parents live separately, the legal mandate is weakened to the extent that a mutual agreement is required only in matters whose regulation is of considerable importance to the child (§ 1687 BGB). Right here is the Core of the problem: Who wants to be talked into after the separation from the ex-partner in the interests of the children?! Indeed: "You stay your father and mother". And that is exactly how most children see and feel it! Whether that suits the parents or not! For more information on how parents should deal with the separation in the interest of children, please contact > Guide for parents. Who this legal mandate as custodial Parent does not want to comply, risking the (partial) withdrawal of custody. Open is the question: who gets it then sole custody? To find out which decision criteria apply and which procedure is used, you will find the entry on the topic > family law & Parental conflict. Parent responsibility is placed in the foreground. The family courts have to work towards agreement and compensation in every stage of the procedure (§ 156 FamFG). Only when it is clear that the parents are unable to jointly make responsible decisions > Parental agreement to avoid the state intervention in parental rights.
> More.

  • How do fathers get to custody??
  • Do you want more about the Broad of Custody proceedings knowledge?
    >here

Author: Dr. Schröck – law firm for family law


signpost for custody proceedings

Left & literature

Custody proceedings

Concrete occasion for interference with the existing (joint) child custody

For a successful run Custody proceedings must be in the application form concrete occasion which shows that the common perception of the -> parents responsibility failed. If the court or the youth welfare office still has the impression that the parents can communicate with each other about the interests of the child (in writing by e-mail, etc.), this is an indication of the maintenance of common concern. Rather, at the communication level of the parents, there must be a serious and sustained disruption that fears that the parents will not be able to reach a joint decision-making process and that the child will be significantly burdened by forcing the parents to share the concern together. However, the mere fact that the other parent is incapacitated, for example because of severe alcoholism or other mental disorders, does not prevent the court from maintaining shared parent responsibility. There are no side-by-side statements on how the other parent is incapacitated in the application form. More information on the occasion for one Custody proceedings do you think …? Find >
here

application

In a Custody request is not more than one or two DIN-A 4 pages. The judge is simply required to submit an application stating the desire of a parent. If the other parent is to be completely excluded from child custody, a concrete, verifiable factual presentation is required (cf OLG München, NJW 2000, 368, which states on page 369: ,,The mere assertion that no communication is possible between the parties (.) Does not replace the presentation of concrete facts. In addition, the parties can be expected to make every effort in important > Custody matters to come to an agreement with the other parent, even if this may be difficult for the parties after the separation. As long as it is not sufficiently certain that such efforts have been unsuccessful and must be unsuccessful, it can not be considered that the abolition of the shared parental responsibility is a matter for the -> child welfare best matches."

In the process of > In addition, this lecture must be credible (§ 51 (1) sentence 2 FamFG)..

No judge reads in custody proceedings ellenlange remarks on the personality of the other parent’s desires with the possibly expected attention. Essentially this is only for the > Parenting skills report.

Reason example:

. A viable social relationship between Mr. [Father of the Child] and me has long been completely destroyed, and forced maintenance of common parental care is no longer beneficial to the well-being of [Name of the Child]. Continuing destructive parenting would, in my view, continue to be a huge burden on [child’s name] for [child’s name], regardless of which parent, against the backdrop of the detailed and documented current situation and the countless incidents of the past is responsible for the lack of communication. I therefore consider a prompt decision to clarify the custody of [name of the child] as absolutely necessary for the following reasons …

[The following is the representation of the present case concrete essential issues of the child in which no agreement can be reached between the parents, but alonedecision-making power for the best interests of the child is]

jurisdiction (Sections 152, 154 FamFG)

to the question of Jurisdiction of the court, if the mother moves with the child without consulting the father.

No lawyer

To one > Initiate child-making procedures (eg custody or accession procedures) no lawyer be turned on. There is no compulsion to legal representation. Section 114 (1) FamFG does not cover children’s matters pursuant to §§ 151ff. FamFG. In children’s matters may be part of a > Divorce proceedings until the end of the hearing in the > Divorce date. That one parent agrees to the request of the other parent for the transfer of sole custody (§ > 1671 para. 1 p. 2 no. 1 BGB) is rare in practice. The cases of § 1671 Abs.1 S.2 Ziff.2 BGB found much more frequently and require a judicial intervention in the parental right.

Legal aid

The family courts have to work towards agreement and compensation in every stage of the procedure (§ 156 FamFG). Before courts intervene in joint custody, parents are encouraged to seek out-of-court solutions. No legal aid will be granted for a custody dispute if the extrajudicial offers of assistance have not been exhausted.
> More

process assistance – Lawyer of the child

The underage child should be involved in procedures that affect his person process assistance be coordinated to the extent necessary for the exercise of his interests. the process assistance are the in -> Section 158 (4) FamFG assign assigned tasks.

The tasks of the process assistance:

1. It belongs to the original task of the procedural adviser, the interest of the child is to determine and to assert in court. It is the will of the child (subjective interest) and that > Child welfare (objective interest). The procedural assistance has thus in the Custody proceedings to make clear the interests of the child. This is the process assistance empowered to have conversations directly with the children without parental involvement. At the request of the child, the discussions are to be treated confidentially. He should inform the child about the legal proceedings. Among the tasks of the procedural assistance does not include a general statement of facts, the assessment of the child or the support of the Youth Welfare Office.

2. By special court order, the process assistance gem. § 158 Abs.4 S.3 FamFG further tasks are assigned. In this case, the court may delegate the procedural assistance to the parents or other caregivers of the child as well as the task of assisting in the establishment of a mutually agreed regulation on the object of the proceedings (mediator’s task). A judicial task assignment, which goes beyond § 158 Abs.4 S.3 FamFG, is not permitted by law.

The order of a process assistance is after § > 158 para. 2 FamFG i.d.R. required,

  • if the child’s interest in that of his legal representative is in significant contrast;
  • in proceedings according to §§ 1666 and 1666a BGB, if the partial or complete withdrawal of caring for a person is considered;
  • if the child is to be separated from the person in whose care it is located;
  • in proceedings concerning the release of the child or a whereabouts order, or
  • if the exclusion or a substantial restriction of the right of access comes into consideration.

In this case, the court does not order one process assistance, it must justify this in the final decision. Of the process assistance becomes party to the procedure through its appointment. However, he does not become the legal representative of the child. He can appeal in the interest of the child (§ > 158 para. 4 FamFG). Of the process assistance has to ascertain the interest of the child according to § 158 Abs. 4 FamFG and to bring it to bear in judicial proceedings. For this he has to determine the will of the child. However, he is not bound by the will of the child, but may deviate from this if, according to his expert assessment, this corresponds to the interests of the child. the process assistance can after § -> 158 (4) p. 3 FamFG be transferred the additional task of having conversations with the parents and other caregivers of the child and to participate in the establishment of a mutual agreement on the subject of the proceedings. The court must specify the type and scope of the assignment and justify the assignment.

personal Participation of the child in the procedure

The consideration of the child will is one of the -> Child welfare criteria and thus a decision scale. The court has to hear the child personally when it is 14 years old (§ 159 FamFG). On the other hand, there are some practitioners who see child hearings as a form of particular child maltreatment, especially for children under the age of 14 (> Video: Parental conflicts before the family court). So in the case of one (also court-approved) > Parent Agreement (§ 156 FamFG) advocates (cf.. Obermann, NZFam 2015, 1129), the child concerned not or only very limited in content to listen personally, since the hearing and agreement of the parents should be sufficient. Others emphasize the UN Convention on the Rights of the Child: It obliges the contracting states, including Germany, to ensure consideration of the child’s opinion in matters affecting it (Art. > 12 UN CRC). In addition, the parents should involve the child in custody issues within the family (§ > 1626 para. 2 BGB). The extent of personal involvement of children in the process is morally, emotionally and scientifically controversial (see Ivanits, no involvement of the child in parental agreement?, NZFam 2016, 7). The courts therefore treat personal involvement very differently. It depends on the judge type.

Officio investigation policy in children’s matters

Goal of a procedure > Transfer of custody is always the answer to the question:

“Is to be expected with the transfer of sole custody of a parent,
that this best suits the best interests of the child? ”
(§ -> 1671 (1) p. 2 no. 2 BGB)

That’s what it’s aboutWhat is best for the child?“Is it better to stick to joint custody or is it better to transfer it to a single parent? The family court has the answer to this question to determine ex officio (§ > 26 FamFG). It is up to the court responsible for the proceedings relevant facts to be introduced ex officio in the proceedings (§ 26 FamFG). In contrast to family crimes (§ > 112 FamFG) on custody matters (> Childhood matters) does not belong, that is valid Principle of > formal truth not according to which the scope and the need for evidence of the dispute largely depend on the behavior of the parties (burden of proof and proof in family litigation) > here), the court has to investigate in the procedure of the voluntary jurisdiction the objective truth of the facts, which it wants to base its decision on (Principle of material truth). The Court of First Instance is neither bound by nor relied on the actual arguments of the parties and their requests for evidence in order to establish the facts which should form the basis of the decision. Also consistent claims the participants and actual concessions are to check their accuracy. If the assertion made by a party is not disputed by other parties, this will deviate from § > 138 Abs. 3 ZPO whose evidence is only excluded if it is perfectly clear that the silent parties want to admit their accuracy and, on the other hand, there are no objections on the part of the court. The principle of appointment is mentioned to clarify what is the role of the lawyer in this context: with his commitment, he indicates the direction of the ex officio investigations.

participation boycott of a parent

The family court has to clarify the facts in children’s matters ex officio. But what happens if, due to the lack of participation of a party to the proceedings, the circumstances relevant to the decision can not be explained to the satisfaction of the court? Some courts think of the suspension of the custody proceedings under § 21 FamFG. This is particularly annoying for those involved who have an interest in the custody decision. The Cologne Higher Regional Court has decided that a suspension of proceedings under § 21 FamFG is out of the question, only because participation of the participants in the investigation of facts considered to be necessary does not take place.

(Quote) "Only in exceptional cases may a suspension be allowed in order to await a clarification of the facts. In a custody procedure according to § 1671 BGB, to which the acceleration principle applies, this is assumed, if the family relations of the parents at the conclusion of the material investigation are still in the development and can not be finally surveyed, However, in the near future, better knowledge opportunities are to be expected (see Keidel / Sternal, FamFG, 17th ed., 2011, § 21, marginal 14 m above sea level). Since the defendant in the present case has definitively ruled out the child’s entry into Germany, no better information can be expected in the foreseeable future. The suspension decision of the district court thus equates to a final refusal of a substantive decision for all concerned, which is in line with the constitutionally protected requirement of a effective legal protection is not compatible. The proceedings must therefore be continued before the Family Court."

(.) The appeal against suspension may be directed only to the annulment of the suspension decision and not to a specific decision on the subject-matter of the main proceedings (see Keidel and Sternal, FamFG, 17.Aufl., 2011, § 21, paragraph 32). For the further procedure it is to be pointed out that for the child according to § 158 FamFG a process assistance to be ordered, the – if necessary, using modern telecommunication means – to determine the interests of the child and bring them to bear in the procedure Has.

Parenting skills report

If the parent conflict does not appear within the framework of a parent agreement solvable, because the > Conflict potential between parents on a perception of common > Parent responsibility for > The child does not have to hope for a review parenting skills determine which parent has sole decision-making authority in matters of the child of > significant importance is transferred.

Principle of proportionality

Before a family court decides to transfer the full alleged care to a parent, it must because of the Proportionality always check if as Meeker Means of intervention in the parental rights protected by Art. 6 para. 2 GG only > partial withdrawal of custody or just a decision >1628 Civil Code in relation to a disagreement in individual cases it is a possibility. The latter would be e.g. in a parent’s dispute to visit the (right) > School. It is only when parents obviously can not live up to this responsibility that family lawyers have to > Childhood matters to (substitute) educators and according to the legal criteria of > Child welfare principle to intervene in the custody of the parents.

summary proceedings?

Custody proceedings can also be carried out by way of provisional order be guided. However, it is usually discouraged. On the one hand, the principle that interim measures must be preceded only by provisional decisions which are not the result of decisions adopted in the United Kingdom Main thing to anticipate. Next must the urgency of such an application. Such applications are usually popular after the end of a school year to register the children for another school after the summer holidays (against the will of the other parent).

The sole exercise of the > Residence decision and the sole decision in matters of > significant importance to the child (e.g.. > School change to the beginning of this school year or > foreign accommodation), must be so urgent be decided by way of temporary injunction (§§ 49 ff FamFG) got to. This is only the case if there is an urgent need for regulation and a wait until the decision in the main proceedings acute danger for the > Child welfare is not possible. The acute child endangerment must be substantiated set out and unde > 05/22/2013). If the urgent application is based on § 1632 Abs.1 BGB (claim for return of one parent against the other parent), here is the acute child endangerment the decision scale.

amendment of custody decisions />

The amendment one court Decision in > Childhood matters is only possible according to § 1696 BGB if this is out important, the > Welfare of the child lasting touching reasons is displayed (Amendment basic). A physical father, who lives in the > legal proceedings according to § > 155 a FamFG was awarded the Mitsorge, so the Mitsorgerecht is harder to escape than a father, the – without judicial Decision – about > Custody statement or > Marriage was cared for.

To feature "good reasons" in the sense of § 1696 Abs.1 S.1 BGB

(Quote, margin 22) "The circumstances set out above valid reasons that are of lasting benefit to the child that gem. § 1696 para. 1 sentence 1 BGB an amendment to the custody decision from the year 2011 regarding E condition. The change must be necessary for the best interests of the child the reasons for a change clearly outweigh the associated disadvantages (OLG Frankfurt FamRZ 2011, 1875). The decision criterion is the child’s well-being here as well. It contradicts the welfare of the child when its center of life is constantly being questioned. It has already been stated above that the continuing parent dispute about the point of life is no longer reasonable for the children."

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