Right of access: what is the rule

Right to deal with children

How is the right of access regulated??

The best deal that children can have is with parents. Parents shape their children and show them the way to life. If the parents divorce, it often only becomes clear with the right of access that the personal dealings with the child really matter. It is therefore not surprising that children and access rights are key issues when the divorce is pending. If “children and access rights” is an issue for you, you should be familiar with the legal framework that is used to assess which rights and obligations are associated with this. Then if you can avoid quarrels, do the best you can for your child. So avoid the discussion in the "legal space".

The most important thing

  • The right of access is that Right of child and parents to interact with each other.
  • The right of access is always out of Child welfare perspective to interpret and shape.
  • Ideally, you put the right of access to your respective life situation by mutual agreement.
  • A switch model is only considered if you are able to, to speak to each other sensibly and to coordinate.
  • If the family court has to decide, it will primarily be based on one mutual agreement work towards it and, if necessary, order that you seek advice.


The right to deal with the child

The law itself takes for granted. § 1684 BGB formulates from the child’s perspective: "The child has the right to deal with every parent." At the same time, from the parents’ perspective, it says: "Every parent is obliged and entitled to deal with the child." Last but not least, the legislature considers it necessary to clarify that the parents "must refrain from doing anything that Relationship of the child to the other parent is impaired or upbringing difficult.“In this respect, the topic of children and access rights should actually not give rise to disputes. Nevertheless, the everyday life of children and parents is different. The reasons are emotional, but also that owed practical implementation of the handling.

The guiding principle is child welfare

Children are independent beings. They are not possessions. You don’t belong to any parent. When you are discussing the right of access, is always in the background as Mission statement the child’s welfare.

You have to be gentle and gentle with the children. Family life is the best bond. Children are our best judges.

Otto von Bismarck (1815 – 1898)

It’s not about anything else. Section 1697a of the German Civil Code puts it this way: In disputes about the right of access, the court "makes the decision that, taking into account the actual circumstances and possibilities as well as the legitimate interests of those involved, best suits the child’s best interests." The same applies if you, the parent, do so Have to assess access rights. The law does not regulate how the right of access in the everyday life of parents and children is specifically designed. The reality of life is too complex for that. The legislator can, if need be, make specifications. It is up to the parents what they make of it.

Right of access in the everyday life of parents and children

After the divorce, the child remains with the caring parent. The not caring parent has a right of access. Ideally, after the divorce, parents will discuss how the parent who is not caring for the child will deal with it. If you agree, anything is possible. If you want to avoid potential for conflict, you should plan the right of access to one another. Determine in detail and preferably in writing when the right of access begins and ends, on which days it is exercised. Determine where the child is handed over, whether it is picked up or brought. The more precise the regulation, the easier you will get along.

How is it with the interchangeable model?

With the exchange model, you take care of this with your divorced spouse common child in equal parts. You take turns in the care. However, the change model requires one high willingness to coordinate and cooperate. The prerequisite for this is that the child’s well-being is not neglected and the parents are able to coordinate with each other. If this is not the case, that can also happen Family court does not order such a change model (currently OLG Brandenburg 10 UF 2/17).

When and how does the family court decide on the right of access?

You cannot communicate, the non-caring parent can apply to the family court to grant him a right of access and to further develop the right of access. Details are regulated by § 156 FamFG. It should be borne in mind that judicial decisions are only emergency solutions. The law is based on the fact that you, as parents, somehow agree in the interest of the child’s well-being and specifically supports you in reaching such an agreement.

In advance it may be advisable to Youth welfare office to be introduced and to ask to intervene. The youth welfare office does not have decision-making or even compulsory powers. Regardless of this, the family court is also obliged to inform the parents of the possibilities of a court decision Advice from the advice centers and Counseling services for child and youth welfare organizations In particular, to point out the development of a consensual concept for the exercise of parental responsibility.

For this purpose, the court can order that you participate individually or jointly in a free informational discussion about mediation or another possibility of out-of-court settlement of the conflict and appoint a suitable position for this. Provided that you are able to agree on how to use it, this is to adopt a mutually acceptable regulation as a comparison and thus enforceable. If no agreement can be reached, the court can also issue an interim order and regulate how the non-caring parent can exercise the right of access. For this purpose, the court should listen to the child in person beforehand if possible.

In the small world in which children live, there is nothing so clearly recognized and felt by them as injustice.

Charles Dickens (1812-1870)

If the family judge then actually has to decide on the right of access, he will be in his decision primarily based on the age of the child. The older the child is, the longer the contact lasts in one piece. For small children, hourly contact is usually granted once a week, for children from around three years old, overnight stays are considered for the first time. Schoolchildren can then spend the night regularly and also spend part of their vacation with the parent who is not caring for them. Otherwise it depends how you as parent who has not been caring for your child. If you have had little interest in your child so far, the court will not necessarily work to intensify contact.


The Right of access after the divorce is a difficult topic. The sooner you communicate with each other as parents, the more you act in the interest of the child. Even if emotional needs regarding the person of the child shape your thoughts, you should primarily think about it, that it’s about the child and in the interest of good upbringing and development, the child should also treat the other parent.

Written by: Volker Beeden

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