Right of access
Children have a right of access to both parents. Conversely, both parents have in principle a right – and duty –of access to their child. Access means regular personal encounters as well as contact by letter and/or telephone. Good access arrangements can also give a hchild the feeling that they are able to still be a family even after the parents have separated or divorced.
Who has a right of access?
The purpose of contact with the parent with whom the child is not living is for the child to know that this parent is still there and cares for them. Normally all parents have a right of access to their children – and vice versa. It is only restricted if the best interests of the child would otherwise be endangered. Grandparents, siblings and other close persons to whom the child mainly relates who have or had actual responsibility for the child can have a right of access.
Access across national borders
If the child and the parent with right of access live in different countries, it is often more difficult to organise access so that it works for everyone. Once a parent has moved to a different country, the access arrangements previously in place may no longer be appropriate. The standard arrangement in Germany of seeing the child every other weekend and one day a week, for instance, will be hard to maintain. A parent may also query the previous practice.
New agreements will have to be reached. Telephone conversations or contact via Skype, but also visits during the holiday season and on public holidays, frequently take on greater significance.
Are you not or no longer living in the same country as your child? This itself does not in principle change the right you have to regular contact with your child.
Possible ways of resolving a conflict about access
What if you as parents cannot agree on issues of access? If, given the borders between you, you are arguing about how access can be arranged to best suit the child, there is a broad range of ways of getting round this.
Even if a dispute seems unsolvable and the interests appear too irreconcilable, we almost always recommend that mothers, fathers and others with access rights seek further advice and consider a variety of out-of-court methods of conflict resolution in order to enforce their access rights.
How you enforce access to your child even across national borders when in conflict with the other parent can only be determined on a case-by-case basis.
There are no one-size-fits-all solutions. The advice we offer therefore often consists in setting out various approaches and encouraging you to consider these, particularly with regard to the welfare and best interests of the child concerned.
If the child has their habitual place of residence in Germany, you as parents – individually or jointly – can contact the Youth Welfare Office or other family advice centres. They will support you free of charge in negotiating a solution that is appropriate to your situation. Parents who live abroad also have the right to make use of this advice.
If you yourself live in Germany, but your child lives with the other parent in another country, the German Federal Office of Justice can advise in its capacity as the Central Authority.
Our ZAnK advisers will also be happy to help.
If you are trying to reach an agreement with the other parent out of court, this does not need to mean that you are on your own when negotiating an appropriate solution. What about asking trusted friends or independent third parties for help? In many families it is exactly the right thing to involve other family members in finding a solution. In other families the support of a mediator is precisely what is needed in order to bring an agreement closer.
Family courts are also obliged to prioritise a court-approved agreement between the parents before issuing any order regarding access.
We have compiled further information on various methods of amicable conflict resolution.
How clarification from a court of a cross-border dispute about access rights can be brought about depends on a number of factors:
- whether the matter concerns new arrangements or the recognition and enforcement of an existing court order;
- in which country the child lives in;
- in which country the parent who wants to enforce their right of access lives in;
- which international conventions and regulations apply between these countries.
The latter point is important because in Germany several international conventions that provide for the resolution of cross-border conflicts in family arrangements play a role alongside provisions of European law.
New access arrangements abroad based on the Hague Child Abduction Convention
If you are a parent living in Germany and want to have access to your child living in another country regulated, you have in principle the option of bringing proceedings under the Hague Child Abduction Convention. This presupposes that the country in which your child is living is also a contracting state. The application is made to the Federal Office of Justice. As the Central Authority for Germany within the meaning of the Convention, the Ministry will pass your matter on to the relevant foreign Central Authority, as a result of which courts or authorities there can then determine the right of access.
If you are a parent living in another contracting state and want to have access to your child living in Germany regulated, then, conversely, you can contact the Central Authority in your country. The German Federal Office of Justice also offers to initiate proceedings before the competent German court on behalf of the person applying.
The Hague Child Abduction Convention thus makes it possible for a parent to bring an action for regulation of access in one of the contracting states at any time.
It should be noted, however, that the support offered by the Central Authorities and courts in access issues can vary significantly from one country to another due to differing legal opinions. The German Federal Office of Justice emphasises that many other contracting states would only support cases under these provisions in which access is to be established subsequent to child abduction.
Enforcing a decision on access rights abroad
If a court has already made a decision on access rights that is to be enforced where your child lives, other – and, depending on the situation, different – legal principles come into focus. Specifically, these are the Brussels IIa Regulation of the European Union, the Hague Child Protection Convention, the European Custody Convention or national law.
Cross-border recognition
Within the European Union (with the exception of Denmark), a court decision on custody or access rights from one Member State is recognised in all other states by operation of law. This principle likewise applies between contracting states to the Hague Child Protection Convention.
However, both the European Regulation and the Convention set out grounds on the basis of which recognition can be refused – and these are considered again in the individual case by every body or agency that is presented with a foreign decision. You can counteract this by having recognition of a decision made binding by a court. Such an application must be made either directly in the country that is to recognise the decision or to the German Federal Office of Justice or the Central Authority of the other country.
The last of these procedures is also possible in relation to Denmark, Iceland, Liechtenstein, the former Yugoslav Republic of North Macedonia, Moldova, Montenegro, Norway, Switzerland, Serbia, Turkey and Ukraine. The legal basis then lies in the European Custody Convention.
If it is a matter of recognising a decision of a foreign court in Germany and this comes from a country in which the international regulations mentioned above do not apply, you can apply for the decision to be recognised under national law.
Enforcement of foreign decisions on access rights
The ways that foreign Central Authorities can provide support in the enforcement of decisions on access rights are usually rather limited. The scope of action that exists in individual countries to actually compel the enforcement of an access order with which a party to the conflict has not complied can likewise differ sharply. What is the procedure generally, though?
If you are parents living in different Member States of the European Union:
The Brussels IIa Regulation states that a judgment on access rights given in one Member State will be recognised in another Member State and can be enforced like a domestic decision.
- The underlying decision must fulfil certain requirements.
- If these are not fulfilled, so there is no possibility of direct enforceability, “proceedings for the issue of a declaration of enforceability” can be initiated. These are conducted with the aid of a local lawyer in the country in which the right of access is to be enforced.
- The Central Authorities advise parents who want to bring about recognition/enforcement.
If you are parents living in Germany and in another contracting state of the European Custody Convention or the Hague Child Protection Convention:
- The European Custody Convention and the Hague Child Protection Convention also enable the recognition as well as enforcement of judgments on access given abroad.
- Since the EU Brussels IIa Regulation, however, from a German point of view this is solely of significance in relation to a few individual states.
These contracting states are…
- for the European Custody Convention: Denmark, Iceland, Liechtenstein, the former Yugoslav Republic of North Macedonia, Moldova, Montenegro, Norway, Switzerland, Serbia, Turkey and Ukraine;
- for the Hague Child Protection Convention: Denmark, Montenegro, Norway, Switzerland, Serbia, Turkey and Ukraine (as of: 2021).
- For the case that a parent does not abide by a decision on access rights, it is possible to apply for the “declaration of enforceability” mentioned above in these states on the basis of the European Custody Convention or the Hague Child Protection Convention. We would be happy to talk to you about where the regulations differ in detail.
- The European Custody Convention and the Hague Child Protection Convention do not mutually exclude the other; they can generally be applied side by side.
- A special feature of the European Custody Convention is that, should recognition or the declaration of enforceability of a judgment on access rights given in a contracting state have been refused, the Central Authority of this state can initiate proceedings with the aim of arriving at new arrangements. This is the case also if there has been no court decision on access rights yet.
For further information and an assessment of your individual situation in light of the relevant (inter)national regulations, please do not hesitate to ask us for advice.