Right of access: difference to the care law

Right of access: All information and what you need to know about access rights

Right of access and child custody characterize the relationship of parents or parents to their child. Right of access is the right of the parent and the child to interact with each other or, in simple terms, to spend time together. It has a variety of aspects.

The most important

Custody and access rights have different goals.
Scale is always the best interests of the child.
Parents have access rights, but also a duty to handle.
Even the child has a right to deal with each parent.
The child has a right of access with persons familiar to him.
The biological biological father also has a right of access.
The right of access is not designed by law. The design is subject to the agreement of the parents.
Rights of access are only partially enforceable enforceable.
Mediation is always the better alternative to legal dispute.

Custody and access rights are different terms

The right of access is strictly to be distinguished from child custody. The custody is shared with the parents married to each other at the birth of a common child. It is the right of the parents or a parent, for the child to make decisions about his lifestyle.

The parental concern includes the custody, that is, the concern for the personal affairs of the child (for example, health care, residence permit) and the asset custody, that is the concern for the economic and financial affairs of the child (for example, investing a savings account, taking out a life insurance).

Above all, custody exists independently of the right of access and vice versa. Every parent, whether he or she has custody rights, has a right of access with his child. Conversely, the child has a right of access with each parent, regardless of whether the parent has custody or not.

In the case of conflict, it can be helpful if a parent renounces custody and in return receives a comprehensive right of access. When it comes to child custody, it is important that a parent can make short-term and effective decisions for the child. Fundamental decisions that determine the life of a child should always be discussed and discussed by parents in the interest of the child. Joint decisions often provide a much better basis for having a positive impact on children and for removing the wind from the sails of later allegations made by the other parent. Also, the child will more readily accept decisions that both parents make together and not attempt to play off one parent against the other.

The law sets the direction of the child’s well-being

The basis of the right of access is § 1684 BGB. The law regulates extensively its principles. It tries to take up the situation of life characterized by the partly conflicting interests of the parents and to regulate it more or less satisfactorily. On the basis of the principles specified in the law, the family court judge must ultimately decide on a case-by-case basis how the right of access should be formed in the event of a dispute.

The right of access is always to be understood in the interest of the child’s best interests. According to § 1697a BGB, the family court is obliged to make decisions in matters of access and custody … “which, taking into account the actual circumstances and possibilities as well as the legitimate interests of the parties, best meets the best interests of the child.”.

Even parents who argue about the right of access, must not forget that the best interests of the child should be the maxim of their actions. Especially in disputes is to be noted that the welfare of the child is often advanced only as a pseudo-argument in order ultimately enforce their own interests and the emotional emotional as possible to step on their feet. The law also takes this situation indirectly and always emphasizes the well-being of the child as the maxim of any decision.

Legal requirements on access rights

Section 1684 (1) of the German Civil Code clearly states:

“The child has the right to deal with each parent.”
“Every parent is obliged and entitled to deal with the child.”

The significance of these legal requirements is not to be underestimated. The law takes up the emotional situation of the parents and the child. After that, the child primarily has a right of access with each of his parents. Conversely, and actually secondary, each parent not only has the right to deal with the common child, but also the obligation to care for the child.

Background is the simple wisdom of psychology that a child naturally best grows up and develops when father and mother are involved in the education together. If one parent withholds the other parent from the child, for example, he or she is silent, it is likely that the child will sooner or later feel the “genetic” urge to seek contact with his other parent. It is in the nature of man to know where he has his roots. Parents should always remember when making their child the subject of their legal disputes.

Even the biological father has a right of access

The right of access becomes relevant in two conflict situations.

Married parents separate. At the latest with the divorce the access right of the legitimate child with the non-caring parent is to be regulated.
In unmarried parents, the law also gives the biological, biological father a right of access to the illegitimate child.

The legislator has taken up the realization that the physical, biological father with the child and vice versa, the child with his biological father has a natural emotional relationship. It used to be that the biological father only had a right of access if he had already established a close personal relationship with the child. If the mother refused to interact, establishing a personal relationship was difficult or impossible.

Only the Federal Constitutional Court was able to persuade the legislator to recognize the rights of the biological father and to regulate them by law. Now it is no longer important that the biological father already has a close relationship with the child. Rather, it has been enough since 2013 to demonstrate that through his behavior he wants to take responsibility for the child and that this wish serves the interests of the child.

§ 1686a BGB therefore determines

“The birth father, who has shown a serious interest in the child, has a right of access with the child, as far as the treatment serves the interests of the child.”

Often the right of access is related to maintenance obligations. Anyone who demands support from the biological father should also grant him a right of access and motivate him to take his maintenance obligations seriously. If the alleged biological father claims a right of access, he must prove that he really is the biological father. If the mother denies paternity, the court may order that the paternity be clarified (§ 178 FamFG). For this, the mother has to tolerate the taking of blood samples.

Even the legal, non-physical father has a right of access

Conversely, however, the purely legal and non-physical father (stepfather), who has lived with the child for a long time in a domestic community, has a right of access to the child. He is usually in a step relationship with the child or has adopted it.

§ 1685 Abs.II BGB determines that close caregivers of the child have a right of access with the child if they have the child responsible for the actual responsibility or have worn and a social-family relationship exists. The assumption of actual responsibility is usually to be assumed if the person has lived with the child for a long time in a domestic community. If necessary, the family court may decide on the extent of the right of access and also regulate its exercise in relation to third parties (§ 1684 para. III, sentence 1 BGB).

Right of access third person

Children ideally grow up in a family-social environment. The law also recognizes the situation.

§ 1685 BGB determines that grandparents and siblings have a right of access with the child, if it serves the child’s welfare. They are also equal to current partners or former partners of a parent and generally other people who have lived with the child for a long time in a domestic community. Consider, for example, the nurse who may have raised the child.

How does the right of access develop??

When it is generally said that right of access is the right to spend time together, it usually happens in regular, temporary contacts, visits, weekends, trips or other activities of child and parent. To interact with each other, but not only the personal encounter. Also postal or telephone contacts are therefore part of the right of access.

It is in the nature of things that the law makes no provision for how and how often the right of access may be exercised. If the parents agree, everything is possible. When parents argue, many courts make their decisions based primarily on the age of the child. The older the child is, the longer the contact can take in one go. As a guide:

The right of access for small children is limited to the hourly contact once a week. They should remain as close as possible to the closest caregiver (usually the mother).
For children from about 3 years, regular nights are granted.
Schoolchildren are allowed to stay overnight regularly and also take advantage of holidays.

It depends on how the father’s relationship with the child was shaped during the marriage, how he portrayed himself in the phase of separation, and how the father is currently concerned about the child. If the contact has not been particularly intensive so far, no family judge will try to intensify the contact. So if you suddenly discover your love for the child, you must be prepared for the extent of the right of access to it.

Special: Overnight stays with the other parent

The courts are in favor of having the child stay with the other parent. Overnight stays strengthen the bond with the rightful parent, especially if the residences of the parents are further apart and short-term access would be made more difficult by this alone (eg OLG Saarbrücken 6 UF 20/13: Every two weeks at the weekend an overnight stay for 3 ½ year olds Son).

Is there a duty of the parent??

If a parent refuses to handle the child, the situation is difficult. After all, the Federal Constitutional Court has determined that a child has a right of access with his parents and it is reasonable for a parent to be obliged to deal with his child in the interest of the child’s best interests.

However, if the handling would have to be compulsorily enforced, the measure hardly serves the interests of the child (BVerfG 1 BvR 1620/04). Just as little can be ordered against the will of a parent a change of care model for the common child (OLG Koblenz 11 UF 251/09).

Right of access in connection with the divorce proceedings

If a spouse applies for a divorce, the Application form include the statement, whether the spouses have a regulation on the right of access, the child custody and the maintenance obligation towards the community minor children (§ 133 FamFG).

The court is obliged to work for an agreement between the parties. In this connection, it points to the possibilities of counseling by the counseling centers of the child and youth welfare service providers, and in particular to the development of a consensual concept for the exercise of parental responsibility and parental responsibility (“Cochem Model”)..

For this purpose, the court may order that the parents individually or jointly participate in a free information discussion on mediation or other options for out-of-court dispute resolution or submit a confirmation.

As far as the right of access or the place of residence of the child is concerned, the family court may issue an interim injunction if necessary. Such a unicellular arrangement is also possible as long as participation in a mediation process is pending. The court should listen to the child in advance if possible.

What to do in conflict situations?

Impairment of the right of access does not serve the welfare of the child

The right of access and duty of duty is the duty of the parents to refrain from anything that would affect the relationship of the child to the other parent or would make the education more difficult (§ 1684 paragraph 2 BGB). A typical example is that one parent attempts to manipulate a personality image of the other parent that encourages the child to turn away.

Special: Overnight stays with the other parent

Dust care as a mediator

If a parent violates his neutrality permanently or repeatedly, the family court can, at the request of the rightful parent, appoint a lawyer (§ 1684 Abs. III S. 3 BGB).

Such a geriatric carer is responsible for the design of the right of access and has to ensure a regulated and conflict-free collection and return of the child. He can determine when and how long the child stays with which parent. In order to enforce the right of access, he can demand the surrender of the child to carry out the handling and enforce it in court with the help of a bailiff (§ 1684 Abs. III S. 4 BGB).

Family court can determine a procedure

If the parent disputes the extent and structure of the right of access, the family court may, at the request of the authorized parent, determine the scope and exercise of the right of access (§ 1684 para. III p. 1 BGB).

The court has to take into consideration the wishes of the child. The family court has to accept that the parent who has the right to act may have a new partner. It can not then order the absence of the new partner if the child stays with the authorized parent.

Especially the new partner is often the reason for the caring parent to react aggressively and refuse to deal with it. In the interest of the child, however, this new life situation should be accepted and the personal aversion should not be carried out on the child’s back.

Restriction or exclusion of the right of access

The family court can restrict the right of access or even exclude it, if it is indispensable to the welfare of the child (§ 1684 Abs. IV S.1 BGB).

Cases of this kind are the sexual abuse of the child by the parent who is authorized to work, whereby the existence of pedophile tendencies should not be sufficient. There can also be reasons for a strong, objectively justified aversion of the child to the rightful parent or the continued negative influence of the child on the custodial parent.

Accompanying treatment

Another way to regulate the exercise of the right of access is the order of the family court to arrange the right of access only in the presence of a neutral third party, usually an employee of the Youth Welfare Office (§ 1684 Section IV p. 3 BGB).

Enforcement of access decisions

The right of access is enforceable. However, the best judicial title does not help if the caring parent constantly thwarts the right of access. In this case, the rightful parent must compulsorily enforce the court’s accession decision.

The prerequisite for this is that the court order is “enforceable”. For this purpose, it must contain specific instructions to the parent who cares. Part of the court order is usually that order means in the form of fine or orderly imprisonment are threatened or direct coercion is ordered (§§ 89, 90 FamFG). Before regulatory means are established, the parent must be consulted. Since foreclosure should always be an ultima ratio, the law provides for judicial conciliation. The court tries to mediate and to reach agreement on the exercise of the handling. As far as the well-being of the child appears to be endangered, the court may also temporarily restrict or even rule out the right of access.

It has to be considered that the compulsory enforcement of a right of access for the child involves an extreme conflict situation. Bailiffs may well deny enforcement for this reason (BVerfG 1 BvR 1620/08).

Tip: helpers in need

Youth offices are also service agencies. Youth offices offer free counseling and also perform some mediations themselves. Family counseling centers at Arbeiterwohlfahrt or Caritas are also possible.

Mediation is about peaceful conflict resolution involving a neutral third party. Especially when it comes to children, the emotional fronts are often so hardened that hardly any compromises seem possible. Mediation does not lead to wrong or correct results. Mediation is good and right when it is perceived by both parties as fair and acceptable and ultimately recognizes that the best interests of the child are in the foreground. The mediation ends with the agreement being recorded in writing and legally binding.

Special: access rights when moving abroad

If the caring parent moves abroad with the child, the right of access is often impossible. First, it has to be taken into account that custody gives a much stronger legal position than the mere right of access. The resulting disadvantages must be accepted by the rightful parent in the interest of the child. The wish to emigrate was to be accepted by the family courts in principle. (Higher Regional Court Nuremberg 10 UF 1899/11).

However, the family court must fully weigh the consequences for the child’s welfare and must not ignore the natural interest of the child in a continuing relationship (BGH XII ZB 81/09).

The Federal Court of Justice issues the following aspects in emigration cases:

Binding strength of the child to the authorized parent
bond continuity
Continuity of relatives and friends at the previous place of residence
Education suitability of the rightful parent

It is less important whether the parent willing to emigrate has valid reasons for his wish to emigrate. However, if he conveys the impression that he wants to torpedo the right of access to the move, this can certainly justify doubts about his tolerance and thus about his ability to educate (so also OLG Koblenz 11 UF 149/10). The consequence may then be that the right of residence is transferred to the rightful parent in the context of custody.

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