Access law (Germany)

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Access right is a term of family law . It describes the right of an underage child to have contact with his or her parents and each parent with the child, in special cases also the right of third parties to have contact with the child or the child with third parties. Article Art. 6 of the Basic Law and Art. 8 of the ECHR are decisive here .

In Germany, the right of access is regulated in connection with parental custody (custody) in the BGB , but must be conceptually separated from it. Every child has the right to have contact with a parent who does not have custody. A parent without custody also has the right to access.

The family court can decide on the scope of the right of access and regulate its exercise, also towards third parties ( Section 1684 (3) BGB). Access proceedings are conducted independently of the ownership of parental custody and are conducted as an act of voluntary jurisdiction before the family court .

A right to advice and support from the youth welfare office with regard to exercising the right of access is laid down in Section 18 (3) of the Book of Social Code VIII .

Dealing between child and parents in separated families

In the relationship between children and parents, the right of access is of practical importance when the parents live separately from one another and / or the child lives neither with the mother nor with the father.

The starting point of the regulation is the basic idea expressly laid down in Section 1626, Paragraph 3 of the German Civil Code, that the child needs regular contact with both parents in order to develop undisturbed. This general regulation leads to the specific standardization of a right of contact in § 1684 Paragraph 1 BGB: The child has the right to contact each parent; each parent is obliged and authorized to deal with the child.

In the event of the separation of the parents, this explicit regulation implies the obligation for the parent with whom the child has their habitual residence to enable contact with the other parent, to encourage them and to refrain from any disturbance. Conversely, the other parent not only has the right to access, but also an obligation to do so. With the amendment of the child law of 1998 in the BGB the obligation, which was previously in second place, preceded the law.

The right of access of the parent who does not live with the child

Parents living separately are basically free to mutually agree on a mode of contact. This is individually adapted to the given life situation, taking into account working hours and locations, as well as school times and locations. The handling does not necessarily have to take place on weekends. Also - as is often wrongly assumed - the caring parent has no right to so-called child-free weekends. Since the child's right to deal with the parent who has access rights and the right of this parent to deal with his child are in the foreground when exercising contact, the parent himself is usually responsible for the care during contact. Care by third parties is permitted in exceptional cases, but if the need arises on a regular basis, the contact rules must be adapted accordingly so that the child is looked after by the caring parent. This can be the case, for example, with regularly occurring late working hours that clash with the handover of children on Friday evenings at the weekend. In these cases, handover on Saturday morning may be preferred to outside care on Friday evening, depending on the case.

If there is no agreement between the parents on how to deal with them, possibly despite advice and mediation by the youth welfare office, the family court can be invoked, which has to regulate the dealings in a binding manner. This can be necessary in particular in the case of refusal of access .

The specific design of the contact regulation is to be carried out according to the circumstances of the individual case, taking into account the specific circumstances. As with all disputes in questions of parental custody, the best interests of the child are the yardstick for determining the specific contact arrangements . It also follows from this that in exceptional cases it is possible to completely prevent a parent from interacting with the child if the best interests of the child so require (cases of child abuse or the like).

The supervising parent should not only allow contact with the other parent, but should also promote contact positively (OLG Saarbrücken, October 8, 2012, Az. 6 WF 381/12), which has been referred to as attachment care since 2014.

A right of the contact parent (who is of course still legally considered the parent) to information about the personal circumstances of the child can result from § 1686 BGB, depending on the case.

After a ruling by the European Court of Human Rights ( Anayo case ), the German federal government submitted a draft law in October 2012, according to which the biological father also receives access rights, provided this serves the best interests of the child. In the opinion of the Federal Court of Justice, this is at least generally to be assumed if there was a grown bond between the child and the father through a temporary shared residence. The biological father, whose child lives with the legal parents in an (intact) social family and who has not (so far) been able to establish a close personal relationship with his child, is now to be granted access and information rights under certain conditions.

Dealing with children by carers and in institutions

If the child is in the care of another person, everything is to be refrained from, which affects the relationship of the child to the other parent or makes the upbringing difficult ( § 1684 Abs. 2 BGB).

Judicial process

The following can be heard in court proceedings:

Frequent court practice is the rule that the child should spend every second weekend with the parent they do not live with and that they should be together for a longer period of time during the school holidays . In the case of very young children and even if the parents live a great distance from one another, however, a deviation from this rule may be necessary.

The parent with access rights must collect, bring back and feed the child at his own expense. In individual cases, deviating agreements can be made in the course of judicial proceedings.

The unwillingness of one parent to accept the child's bond with the other parent represents a deficit that can call into question the child's ability to bring up children . If both parents are willing and able to take over parental custody and if only one parent has a tendency to impair access rights, this can give rise to unfavorable custody arrangements.

In the case of the Cochem model , the judicial process is initially suspended and a solution is sought through an out-of-court agreement that is to be supported by intensive networking. Among other things, this is intended to counteract the frequently observed tendency that the already existing parent conflict is further fueled by committed legal correspondence.

The right of access is not to be equated with the right to determine residence.

Cost of handling

As a rule, contact must take place exclusively at the expense of the parent who is authorized to do so. However, the other parent is obliged to take into account the financial situation of the parent with access rights. Otherwise, there is a risk of civil law compensation for breach of duty according to Section 280 (1) BGB.

In addition, it is the task of the family court, in particular to bring the rights of both parents arising from Art. 6 GG into agreement. From this, the obligation can be derived for the parent with whom the child lives permanently to cover the costs of handling in an appropriate manner (e.g. to bring the child to the train station or the airport), according to the Federal Constitutional Court 2002 (decision of February 5, 2002, Az. 1 BvR 2029/00).

The costs resulting from the handling (travel costs, costs for food and accommodation for the child) can only be deducted from the income when calculating maintenance if they are above average, for example because the other parent has moved far away with the child. The pure additional costs are deductible, i.e. the cost of the ticket or the fuel costs, but not the mileage allowance.

On the other hand, the costs of caring for the child during his stay with the parent with access rights do not lead to a reduction in his or her maintenance obligation. The fact that contact stays take place is already included in the rates in the Düsseldorf table .

Recipients of benefits in accordance with SGB II (ALG 2)

If the parent entitled to access receives benefits according to SGB ​​II , commonly known as unemployment benefit II (ALG II) or "Hartz IV", the job center could provide them with a subsidy towards the costs of access (Administrative Court Schleswig, judgment of June 13, 2002, Az. 10 A 37/01 (NJW 2003, 79).

With a new regulation from 2011, adjustments were made; effective retrospectively from January 2011. For the weekend, the child is entitled to proportionate social allowance for all days with more than 12 hours of being together. The standard rate for a 6-year-old child is EUR 251 per month, so the amount of the claim for contact time (standard rate divided by 30 days, for all months) is EUR 8.37 per day.

When calculating the appropriateness of the living space , children who are not exclusively but regularly in their parents' household on weekends and during holidays must be taken into account.

The child's right of access

The question of enforcing the child's right to interact with the other parent if the latter wants to evade their parenting role, i.e. is not prepared to deal with the child on a regular basis, is much rarer and has not yet been clarified.

Although the child's claim according to the wording of Section 1684 (1) BGB is not in doubt, its enforceability is contested with weighty arguments. Here, too, the specific design of the access regulations would have to be found according to the child's objective needs.

However, it is doubtful whether dealing with an unwilling parent is actually in the child's interest. An irregular and, above all, unreliable exercise of the right of access by a parent can be associated with considerable disappointment for the child, which in certain circumstances can cause greater damage than a cessation of contact with it.

It is doubtful still whether dealings against the commonly paid by parent imposition of penalty can be enforced. The Nuremberg Higher Regional Court has denied the possibility of a judicial enforcement of the right of access , while the Cologne and Celle Higher Regional Courts have affirmed the possibility of family court proceedings to enforce the child's rights of access against the parents.

The Federal Constitutional Court decided in 2008 that contact could not be enforced by means of a penalty payment (decision of the Federal Constitutional Court of April 1, 2008, AZ 1 BvR 1620/04): “It is reasonable for a parent to be obliged to deal with their child if this is the case serves the best interests of the child. (...) The encroachment on the parent's basic right to protection of personality caused by the threat of coercion is not justified in this respect, unless there are sufficient indications in individual cases that suggest that forced contact will serve the best interests of the child. "

Dealing between third parties and the child

Section 1685 of the German Civil Code (BGB) provides that grandparents and siblings have the right to access the child if this is in the child's best interests. Spouses or former spouses of one of the parents and the life partner or former life partner of one of the parents also have the right to contact the child if they have lived in the same household for a long time, and this also applies to persons with whom the child was cared for.

Since there is no provision comparable to Section 1626 (3) BGB for the persons named in Section 1685 BGB, the legislature does not assume that dealing with grandparents etc. is in the interests of the child to the same extent as it is with the Parents of a child is the case, but requires the determination of the positive effect of the contact in the individual case. An obligation of the persons named in § 1685 BGB to deal with the child is alien to German law.

Other persons to whom the child has ties generally enjoy a right of access in accordance with Section 1626 (3) of the German Civil Code (BGB) if maintaining the bond is beneficial for the child's development.

Dealing with grandparents

With the reform of the law on parenthood on July 1, 1998, the law of grandparents' right of access to their grandchildren was standardized in Section 1685 of the German Civil Code (BGB). Such a right of access already existed in almost all neighboring European states (Bundestag printed paper 13/4899, p. 44).

There are some decisions by higher courts on the subject:

  • If there is a firm bond between the grandparents and the grandchildren, the grandparents have a right of access according to § 1685 BGB, as this serves the best interests of the child. Tensions between the grandparents and the parents of the children are usually irrelevant (Higher Regional Court of Celle, decision of April 22, 1999, Az. 18 UF 4/99).
  • Tensions between grandparents and mother of the child can lead to a refusal of contact (Higher Regional Court Brandenburg, decision of May 17, 2010, Az. 10 UF 10/10.)
  • Existing serious differences between grandparents and mother of the child can lead to a refusal of contact (Higher Regional Court Hamm, decision of June 23, 2000, Az. 11 UF 26/00).
  • The way the grandparents deal with the child is generally not in the best interests of the child if the parents and the grandparents - who reject such dealings - are so divided that the child would get into a conflict of loyalty if they were dealt with.

The European Court of Justice in the case of the Czech grandmother Neli Valcheva against her Greek son-in-law Georgios Babanarakis dealt with competences in international law (European Court of Justice, decision of May 31, 2018, Az. C-335/17): “The term contact law after Art. 1 Para. 2 Letter a and Art. 2 Nos. 7 and 10 of Regulation (EC) No. 2201/2003 of November 27, 2003 on jurisdiction and the recognition and enforcement of decisions in matrimonial matters and in proceedings Parental responsibility and the repeal of Regulation (EC) No. 1347/2000 is to be interpreted as including the grandparents' right of access to their grandchildren. "

Accompanied handling

If communication between the separated or divorced parents is disturbed, the family court can order accompanied contact . The child concerned then meets the parent with whom they are not living under the supervision of an accompanying person.

For this purpose, a specialist commission on behalf of the Federal Ministry for Family Affairs developed technical standards that were adopted as recommendations for practice in summer 2007 and then published.

Compensation for pain and suffering and damages

In the case of refusal of access, a fine can be imposed.

The individual fine may not exceed the amount of 25,000 euros.

See also

literature

  • German standards for accompanied handling - recommendations for practice. BMFSFJ project - Development of intervention approaches in the divorce process: Supervised and accompanied handling § 1684 para. 4 BGB. Developed on behalf of the Federal Ministry for Family, Seniors, Women and Youth by the State Institute for Early Education . Project management and overall responsibility: Wassilios E. Fthenakis. Editor: Eva Reichert-Garschhammer. Munich 2008. ISBN 978-3-406-56941-8
  • Accompanied handling of children - A practical handbook. Edited by Wassilios E. Fthenakis, State Institute for Early Education, Munich. Authors: PS Dietrich, J. Fichtner, WE Fthenakis, M. Gödde, W. Griebel, U. Hermann and W. Walbiner. Munich 2008. ISBN 978-3-406-56668-4
  • Stefan Heilmann: The legal situation on custody and access rights. An inventory taking into account current trends in case law , NJW 2012, 16

Web links

Individual evidence

  1. ↑ Kemal Temizyürek: The step model of attachment care . In: Journal for Child Law and Youth Welfare . No. 6 , 2014, p. 228-231 .
  2. ↑ OLG Saarbrücken, October 8, 2012, Az. 6 WF 381/12
  3. ↑ Kemal Temizyürek: The step model of attachment care . In: ZKJ . No. 6 , 2014, p. 228-231 .
  4. ↑ closer Mayer, On the obligation to provide information about the personal circumstances of the child from § 1686 BGB
  5. ↑ Order of the Federal Constitutional Court of February 5, 2002, Az. 1 BvR 2029/00 ( online )
  6. ↑ [1]
  7. ↑ Administrative Court Schleswig, judgment of June 13, 2002, Az. 10 A 37/01 (NJW 2003, 79; judgment related to social welfare before the introduction of ALG II and is no longer current
  8. ^ Social jurisdiction of the Federal Republic of Germany - S 6 AS 326/12 ER Hartz IV: Reimbursement of costs for contact rights
  9. ↑ VG Munich, judgment of January 19, 2017, Az.M 12 K 16.1209
  10. ↑ Decision of the Federal Constitutional Court of April 1, 2008, AZ 1 BvR 1620/04 ( online )
  11. ↑ Bundestag printed paper 13/4899, p. 44
  12. ^ Higher Regional Court of Celle, order of April 22, 1999, Az. 18 UF 4/99
  13. ^ Higher Regional Court of Brandenburg, decision of May 17, 2010, Az. 10 UF 10/10
  14. ^ Higher Regional Court Hamm, order of June 23, 2000, Az. 11 UF 26/00
  15. ↑ BGH judgment of July 12, 2017 - XII ZB 350/16
  16. ^ Opinion of the Advocate General at the ECJ of April 12, 2018
  17. ↑ European Court of Justice, decision of May 31, 2018, Az. C-335/17
  18. ↑ State Institute for Early Education (on behalf of the Federal Ministry for Family, Seniors, Women and Youth): German standards for accompanied interaction. Munich 2008.
  19. ↑ https://openjur.de/u/896973.html