Interchangeable model

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As exchange model , pendulum model or Joint double residence regulations are to support common children referred when, after a separation of their parents in both households live significantly. If the child lives in both households for approximately the same proportion of time, this is also referred to as an equal exchange model .

Terminology

In contrast to the widespread residence model or single residence model , in which the child lives with one parent, in the alternate model the child should alternately live with both parents, and this at the same time proportions as possible. In professional circles, this type of childcare is therefore also referred to as the parity model (from the Latin paritas "equality") or the parity change model. Sometimes the less caring parent already speaks of a changeover model from a time share of 30%.

In contrast, the Federal Court of Justice defined the changeover model in a ruling in 2005 as a model in which both parents take on "about half of the care and upbringing tasks".

requirements

Parents' personal requirements

According to the general opinion, children develop a bond with an adult, which gives them emotional security, if the latter is willing and able to behave sensitively towards the child (see attachment theory ) . A decisive prerequisite for the implementation of a parity model would be the willingness of both parents to provide this service, which is stable over a longer period of time. For this, both attachment figures must be sufficiently resilient and reliable.

Both parents should have approximately equal relationship, care and support skills, have enough time and be seriously determined to actually look after the child to the desired extent. In addition, there must of course be enough space and child-friendly rooms in both parents' apartments.

Organizational requirements

In addition, experts and judges demand a short physical distance so that the socio-spatial environment (kindergarten, school, friends, sports clubs, etc.) does not change when moving from one home to the other. In exceptional cases, however, the parity model is also agreed by parents who live further away from each other or has already been enforced in court in such cases.

Child wish

The psychologist Jan Piet H. de Man mentions the acceptance of children, i.e. their willingness to live the model. De Man notes that in the event of a rejection, it should be checked whether this is only due to a conflict of loyalty towards the currently caring parent.

Parents' handling of conflicts

According to Fichtner and Salzgeber and various court judgments based on their expertise, the level of conflict among parents should be low and the ability to communicate and cooperate should be particularly pronounced. Another decisive factor is how the parent who is not living with the child is conveyed or represented by the parent present.

According to various court rulings, on the other hand, a minimum of communication and cooperation between the parents is sufficient, and if necessary they should be supported by family advisers or mediators.

Non-communication as a permanent state is not compatible with the parity model. In a ruling by the Federal Constitutional Court (BVerfG, decision BvR 1868/08 of June 20, 2009) it states, among other things, that the joint exercise of parental responsibility requires a minimum degree of agreement between parents. In February 2017, however, the Federal Court of Justice set the following guiding principle :

“A judicial access regulation, which ultimately leads to an equal care of the child by both parents in the sense of an equal change model, is not excluded by the law. Even the rejection of the changeover model by one of the parents does not in itself prevent such a regulation. Rather, the decisive yardstick of the regulation is the best interests of the child to be ascertained in the specific individual case . "

- Federal Court of Justice

Practical design

The change often takes place at short intervals of two to five days. If one parent works to a much greater extent than the other, some parents decide that the children are always predominantly with the non-working (or less) working parent during the week and then spend a long weekend with the (more) working parent. A rigid weekly rhythm is widely practiced, and sometimes the children only switch from one household to the other every 14 days. In rare cases, e.g. For example, if one parent lives abroad, alternating care phases of several months are agreed.

There is disagreement in the scientific literature about how the changes should proceed. One position advocates that parents should help the child to transition from one parent to the other so that they can move without emotional irritation. Others, on the other hand, are critical of these "handovers" and favor natural transitions, especially with parents who quickly get into arguments: the children go to school from one parent on the day of the change and come to the other parent after class. For younger children, this works in the same way in kindergarten; one parent brings, the other picks up.

The interchangeable model requires additional expenses on the part of the parents for living space (children's room) and sometimes double equipment for clothes, toys, bicycles, etc.

Arguments for the parity change model

There is now consensus among experts that after a separation, both parents are basically equally important for the child. A summary of numerous studies on the changeover model (2013) comes to the conclusion that, as a rule, it corresponds best to the best interests of the child in most of the usual constellations of families with subsequent separation. Counter-arguments that would not have withstood a review include statements that the changeover model requires special demands on the parents' ability to communicate, or that the changeover model is not suitable for children of highly controversial parents. Overall, recent scientific studies and meta-analyzes show in great agreement that the change model is superior to other residence models in terms of its physical, social and mental effect on children raised in this way. This applies beyond all age groups and regardless of the quality of the relationship between the separated parents. According to several scholars, the parity model can reduce the level of conflict in highly controversial couples.

The OLG Dresden also mentions the following advantages:

  • The children experience everyday life with both parents,
  • Both parents remain responsible for the child, so that excessive demands on one parent or negative developments in the children are discovered earlier, and
  • Both parents experience a partial release from the burden that arises with single parents.

Arguments against the parity change model

The objection is that many competencies are learned primarily from the parent who has not been involved in the care up to now, which seems particularly difficult in the context of the separation situation under the stressful conditions.

In addition, an ostensible will of a child should not be followed, because children usually have a pronounced need for fairness and would often say that they wanted to live as half as possible with each parent. But if they were asked how the specific arrangement should be lived, they would usually not suggest a change model.

It was argued that children from separated families would not only rate the different living environments of their parents positively, but would also be burdened by the change due to different values ​​and ideas about the upbringing of their parents. The children could hardly argue with one of the parents, but depending on where they are, they would have to feel comfortable according to the expectations of the respective parent, which requires the child to continuously adapt. It is also seen as problematic that the external circumstances in two households could not always be equally distributed, but not every child would feel free to openly communicate any wishes or sadness in this regard.

Another objection is that the alternation model promotes an attitude on the part of the parents to ask the child to stay with the other parent in the event of educational difficulties, which would make the child, who is already preoccupied, even more insecure. Conversely, in order to avoid educational measures, the child could threaten the possibility of switching completely to the other parent, which would considerably weaken the parents' authority. In addition, there is a particular risk that parents would accuse each other of parenting difficulties.

Claims by proponents of the parity model that families who practice the alternation model are less likely to argue in court or have an overall lower level of conflict are denied. Rather, according to the results of various studies, it could also be the case that such families had more conversations about the children, but also had more conflicts than with the residence model. Both the intensity of the conflict and the cooperation between parents would tend to remain unchanged, at least in the medium term.

With regard to very young children (two to three years of age), a particular sensitivity to separation and the need for clearly manageable daily routines and fixed rituals were assumed. In this age group, repeated separations and changes of caregiver would mean stressful experiences for the child and lead to a breakdown of the relationship with the main caregiver if both parents only limited and did not provide the child with sufficient emotional support.

Legal situation

The changeover model has been enshrined in law in many countries (e.g. France, Belgium, Italy, the Czech Republic, Slovakia, Denmark, Sweden, Norway, Spain, USA, Canada and Australia). On October 2, 2015, the Council of Europe unanimously passed the resolution on “Equality and Shared Parental Responsibility” (Resolution 2079), the core of which is the reduction of discrimination against fathers, the anchoring of equal double residences in national laws and working towards consensus-based solutions for parents are.

frequency

In a survey of around 200,000 schoolchildren aged 11–15 years in 2005/2006 in 36 Western countries, 24% did not live with both birth parents in the household and a rounded 1% said they lived in a kind of alternation model. This was most common with 4% in Sweden, 3% in Iceland and Belgium, 2% in USA, UK, Canada and Norway, least of all with less than 0.45% in Bulgaria, Greece, Turkey, Romania, Ukraine, Poland, Netherlands , Macedonia and Croatia. All other countries, including Germany, were at a rounded 1% (0.45% to 1.5%).

Germany

frequency

In 2014/2015, 10% of underage children did not live with both birth parents in the same household. An alternation model, in which the child spends 40% to 60% of the nights with each parent per month, was practiced by 5% of these children.

Legal position

There is no legal regulation for the exchange model in German-speaking countries. For example, the child can only be registered with a main residence under registration law , although it could also have a secondary residence. The state child benefit is only to be paid indivisibly to one parent, so far there was no entitlement to partial child benefit for both parents. Since a ruling by the Düsseldorf Higher Regional Court in 2013, this option has also been available depending on the circumstances.

If it serves the best interests of the child, a change model can also be ordered against the will of a parent. According to a ruling by the Federal Constitutional Court, however, the legislature may assign the main responsibility for the child to one parent if the prerequisites for joint exercise of parental responsibility are not met. In one case, the expert opinion pointed out the negative consequences of sole custody by the mother. She could completely exclude the father, which would not be in the best interests of the children. Also had higher regional court make clear the inclinations or the expressed will of the children, a division of food items or maintain, not sufficiently taken into account. The district court had already ruled that a reduction in care and upbringing by the father was not justified due to his considerable share in caring for the children over several years before the separation.

A court can therefore order a changeover model for childcare even against the will of a parent. On February 1, 2017 (file number XII ZB 601/15) the Federal Court of Justice strengthened the change model and decided that a family court can order a so-called parity change model at the request of one parent even against the will of the other parent. The BGH describes a change model as roughly half the care of the child by both parents, as a contact regulation. This model is to be ordered if the shared care by both parents in comparison with other care models best suits the best interests of the child in the specific case.

Currently seen in Germany of § 1626a custody paragraph 3 BGB in principle with the mother so that it results in that children residing with their mother and also there reported are.

Effects on child support

The difference between switching models, in which the care times are unevenly distributed, and the parity model is significant with regard to maintenance payments, among other things. In the past, courts treated unevenly distributed change models such as the conventional residence model. The less caring parent had to pay the more caring parent full cash maintenance less half of the child benefit, usually according to the Düsseldorf table, as if they were paying the full or predominantly childcare maintenance as in the residence model.

Increasingly there are decisions in individual cases that do not follow a strict regulation from the guiding principles of the BGH (2005 ff.). In addition to the care times, the care intensity is also considered under the holistic child welfare aspect. It is weighted, for example, if one parent regularly takes care of and encourages school matters (homework, practice for work, presentations, etc.) during the day, while the child is looked after by the other parent in the evening and at night (see BFH judgment of 23 March 2005 Az .: III R 91/03). However, there is no generally applicable formula or catalog for this.

According to the rulings of the Federal Court of Justice of December 21, 2005, Az. XII ZR 126/03 and of February 28, 2007, Az. XII. The distribution that has been customary up to now, in which one parent pays childcare maintenance while the other parent pays cash maintenance, must ZR 161/04 cannot be questioned as long as one parent has the clear focus on care. In the cases to be negotiated, the distribution was about 1/3 to 2/3 or 64% to 36% including the holiday periods; the BGH affirmed a clear heavy weight with the mother.

Based on the case law of the Federal Court of Justice, there are more and more individual case decisions in which at family courts from around 40% care by one parent to the other parent, with the same income and financial situation, no cash maintenance payments are awarded. The latter parent can claim full child benefit for this in individual cases. Otherwise both parents are entitled to child benefit in the parity model according to § 32 EStG and § 64 EStG. Since the child benefit represents a tax exemption from the subsistence level of the child for both parents (family benefits equalization), it must also be used for maintenance by both parents. In this case, one of the parents has a civil law claim to compensation under Section 1612b BGB against the person to whom the child benefit is paid. Provided the claim is not expressly assigned.

According to the Federal Court of Justice, consideration must only be given to a strict separation of cash and care maintenance, which is different from the one practiced in the residence model, if the parents practice a "real" changeover model in which the care shares are "approximately" balanced or both parents actually each half of the changing supervision. In conflict-ridden switching models, in which the parents do not conclude any joint financial agreements, the family court will, at the request of one of the parents, determine the amount of cash maintenance obligations of both parents according to their financial and income situation. The maintenance in kind provided can be taken into account in individual cases.

Since the parity model assumes the same proportion of care services, there is no separate weighting of the care service here. The procedure for determining maintenance applies a minimum maintenance stipulated in the law, which is based on the double allowance for the subsistence level of a child in accordance with the provisions of tax law (Section 1612a BGB). In addition - in individual cases - the child's switching costs from and to both parents can be viewed as increasing needs. This is particularly important when long travel distances between both parental homes have to be overcome.

According to the legal situation valid until December 31, 2007, the child benefit paid to the parent supervising the residence model was offset against the cash maintenance of the other parent. The new regulation of § 1612b BGB from January 1, 2008 stipulates that child benefit is to be used to cover the child's cash needs. Half of this if one parent fulfills his or her maintenance obligation by looking after the child (Section 1612b, Paragraph 1, No. 1; residence model, including all other non-parity models). In all other cases in full (§1612b Paragraph 1 No. 2)

The legislature has thus made it clear that child benefit is not primarily attributable to the parents as income, but to the child. In the parity model, both parents fulfill their care and maintenance obligations at the same time. This gives the child the right to have the child benefit available from both parents on a pro-rata basis, so that both parents can use it for the child's cash needs for mother and father. Parents can arrange this differently among themselves if the maintenance of the child is not endangered.

Since the maintenance reform, the Federal Court of Justice and the Federal Constitutional Court have assumed that the child benefit represents the child's income and - in non-parity models - only the amount of child maintenance is deducted from the income of the person liable for maintenance. At the same time, the caring parent is obliged to use the full amount of the child benefit for child maintenance (BVerfG of July 14, 2011 - 1 BVR 932/10).

Situation in other countries

United States

The USA is considered to be the country of origin of the switching model, which is why the majority of psychological research on the topic was carried out there.

After the joint legal custody was legally regulated as a consequence of divorce in the state of North Carolina as early as 1957 , the majority of the other states followed suit until the 1980s. While essential decisions usually had to be agreed together, in many cases only little changed in the actual stay of the child. This paved the way for an expansion to include care practice, which was first described scientifically as a social practice in the 1970s and after which demands became louder and louder in the 1980s.

California was the pioneer of a legal regulation of the joint physical custody , where this has since held the rank of an alternative that must always be examined. Some states go beyond this and consider it a preferred model (like Oklahoma Iowa and Maine ) or a rule model with a 50:50 time division goal (like Louisiana and Arkansas ). There are even efforts to make a 50:50 time model compulsory if the two parents cannot agree on another regulation.

Judicial practice lags behind with an estimated share of around 20% for a changeover model. In public opinion, however, there is a strong consensus with approval ratings between 80% and 90% that alternate care is the best form of care in the event of separation. A further increase in the spread is therefore expected.

Australia

In Australia , the changeover model prevailed mainly as a result of several reforms of custody and child maintenance law between 2003 and 2008. In addition to joint custody, since the Family Law Amendment (Shared Parental Responsibility) Act of 2006, alternate care by both parents has also been the preferred care model. Although it remains to consider the individual case, the parents must also be supported by family counseling in enabling a change model. In total, around a third of the disputed and settled cases at family courts in 2007/08 had a switching model, among which a balanced temporal division even predominated.

literature

  • Hildegund Sünderhauf-Kravets : Alternating model: psychology - law - practice. Alternating childcare by parents after separation and divorce. Springer-Verlag, 2013, ISBN 978-3-531-18340-4
  • Jörg Fichtner: Separated families - solution-oriented appraisal and legal advice . Hogrefe Verlag, 2015, (Chapter "Swap model": pp. 48–51), ISBN 978-3-8017-2517-4 .
  • Danielle Gebur: Education in an alternating model. Separated children and successful parenting partnership. Tectum, Marburg 2014, ISBN 978-3-8288-3450-7 .
  • Christina Klenner: Essay on the emancipation of the child in family law proceedings. In: Journal for Child Law and Youth Welfare. No. 1, 2006, pp. 8-11.
  • Kerima Kostka: The changing model as a guiding model? Handling and child welfare as reflected in current international research . In: Streit (journal), No. 4, 2014, pp. 147–158, ISSN  0175-4467 .
  • Hildegund Sünderhauf: Alternation model: psychology - law - practice, alternating childcare by parents after separation and divorce. Springer, Wiesbaden 2013.
  • Hildegund Sünderhauf: Prejudices against the alternate model: what is right and what is not? Arguments in case law and findings from psychological research. In: FamRB - Der Familienrechtsberater. 2013, Part 1: Issue 9, pp. 290–297, and Part 2: Issue 10, pp. 327–335.
  • Hildegund Sünderhauf, Georg Rixe: Everything will be fine! Everything will be fine? Legal systematic positioning and constitutional references of the court order of the parity change model. In: FamRB - Der Familienrechtsberater. Part 2: Issue 12, 2014, pp. 469–474.
  • Wolfram Viefhues , The new case law on the changeover model and its effects , Juris The Monthly 2018, 178
  • Scientific advisory board for family issues (Ed.): Familial education skills. Juventa, Weinheim / Munich 2005.

Web links

Individual evidence

  1. ↑ Hildegund Sünderhauf: Alternating model: Psychology - Law - Practice. (PDF) 2013, accessed on November 13, 2018 : “The alternation model is a care and way of life for children of separated parents, in which children alternately live a substantial proportion (ie at least 30%) with each parent, at home in both parental homes and mother and father share parental responsibility. "
  2. ^ Judgment of the XII. Civil Senate of December 21, 2005 - XII ZR 126/03 -. Accessed on November 13, 2018 : “It will be assessed differently, however, if the parents take turns looking after a child, so that each of them takes on about half of the care and upbringing tasks. [...] Such a change model practiced by the parents does not remain without influence on the assessment of needs. "
  3. ↑ a b c d e f Jörg Fichtner, Joseph Salzgeber: Is there a golden mean? The change model from an expert's point of view . In: Family Partnership Law . No. 7 , 2006 ( online ).
  4. ^ A b c d Jan Piet H. de Man: Results of international factual research on the welfare of the separated child - "Joint custody": Yes and no. (No longer available online.) Formerly in the original ; Retrieved August 28, 2012 .  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. @1@ 2Template: Toter Link / www.vafk.de  
  5. ↑ a b Half child care: imagination or feasible? In: tr Trennfaq.com. Retrieved December 15, 2011 .
  6. ↑ XII ZB 601/15 In: Federal Court of Justice , February 1, 2017
  7. ↑ a b c d The integrated changeover model - a way of sustainable childcare by separated parents. (PDF; 105 kB) Accessed December 15, 2011 .
  8. ↑ a b Lothar Unzner: Attachment theory and alternation model. Retrieved December 15, 2011 .
  9. ↑ Hildegund Sünderhauf: Alternating model: Psychology - Law - Practice . 2013, p. 1-893 .
  10. ↑ The alternation model: definition, practice and status of psychological research; Lecture by Hildegund Sünderhauf (Protestant University of Nuremberg) at VeV, Zurich on December 10, 2012. (PDF; 2.4 MB) (No longer available online.) Archived from the original on January 4, 2014 ; accessed on January 4, 2014 .
  11. ↑ Linda Nielsen: Joint Versus Sole Physical Custody: Children's Outcomes Independent of Parent – ​​Child Relationships, Income, and Conflict in 60 Studies. In: Journal of Divorce & Remarriage. 59, 2018, p. 247, doi : 10.1080 / 10502556.2018.1454204 .
  12. ^ M. Bergström, B. Modin, E. Fransson, L. Rajmil, M. Berlin, PA Gustafsson, A. Hjern: Living in two homes-a Swedish national survey of wellbeing in 12 and 15 year olds with joint physical custody. In: BMC public health. Volume 13, September 2013, p. 868, doi : 10.1186 / 1471-2458-13-868 , PMID 24053116 , PMC 3848933 (free full text).
  13. ↑ Malin Bergström, Emma Fransson, Please Modin, Marie Berlin, Per A Gustafsson, Anders Hjern: Fifty moves a year: is there an association between joint physical custody and psychosomatic problems in children ?. In: Journal of Epidemiology and Community Health. 69, 2015, p. 769, doi : 10.1136 / jech-2014-205058 .
  14. ↑ Kerima Kostka: The common parental care in case of separation and divorce: a look at the accompanying research on the reform of the law of children. (PDF) Retrieved June 28, 2014 .
  15. ^ Equality and shared parental responsibility: the role of fathers . Parliamentary Assembly of the Council of Europe , October 2, 2015
  16. ^ HBSC Study: Health Behavior in School-aged Children 2005/06
  17. ↑ a b AID: A II Survey, May 2014 to April 2015, N = 13,000 children, of which 50 children live in an alternating model (page 55 52 = 5.9 / 100 * 393 + 4.2 / 100 * 697), per year So about 3 children, therefore no data broken down by age given, as it is not statistically significant, according to the German Youth Institute October 12, 2015
  18. ↑ at least 12 and a maximum of 18 of 28 to 31 nights each
  19. ↑ Commentary on Ref .: II-7 UF 45/13
  20. ^ Decision of June 20, 2009 - BvR 1868/08
  21. ↑ Arrangement of the change model through the access regulation of the family court. In: juris The legal portal. Retrieved February 28, 2017 .
  22. ↑ beck-aktuell.NECHRICHTEN | BGH: Switching model to childcare also possible against the will of a parent. Retrieved February 28, 2017 .
  23. ↑ The interchangeable model in the United States of America (USA) . In: Sünderhauf: Wechselmodell , pp. 869–872
  24. ↑ The interchangeable model in Australia . In: Sünderhauf: Wechselmodell , pp. 873–876