PARENTS / ADOPTION
A Jürgens Rechtsanwaltsgesellschaft attorney specializing in family law provides parents legal counsel on matters such as:
Custody of legitimate children
The person/s having legal custody for minor-aged children will make all manner of important life decisions about the children’s health care, schools, career training, and assets.
Under German law both parents fundamentally have custody of legitimate children, not only during marriage but also following a divorce. It is in the children’s interest to have both parents sharing responsibility for their care. Exceptions, however, do occur: if one parent misuses joint custody to the detriment of the child, the other parent can apply for sole custody.
The custody question should not become the focus of a “proxy war,” with the parents arguing post-divorce about custody simply as a way aggravating one another, for it is primarily the children who bear the consequences. Where conflict about custody matters is unavoidable, Jürgens Rechtsanwaltsgesellschaft will assist you in asserting your rights with the necessary sensitivity and negotiating skill, so that you can play your legitimate part in raising your children—now and in the future.
Custody of illegitimate children (custody declaration)
The mother of an illegitimate child has sole custody rights for that child. A father interested in obtaining shared custody of his illegitimate child will only be awarded that right with the agreement of the mother. It is mandatory that both of the illegitimate child’s parents execute a custody declaration and that this be done voluntarily. This requirement is overlooked mainly by fathers of illegitimate children who make their acknowledgement of paternity dependent on the mother’s agreement to joint custody. Including any conditions or timelines in a custody declaration makes it invalid. Resolving custody rights issues can be particularly contentious when a binational couple’s illegitimate children are involved.
The dissolution of binational marriages or partnerships can sometimes escalate to the point of child abduction. An observable pattern often involves the father abducting his child to his native country during a visitation granted by the child’s mother. What is the correct response in this situation?
Child abduction demands immediate action. The child must be returned to the place where it lived before the abduction (habitual place of residence) as quickly as possible. Only then are you assured that custody and access issues will be decided by the courts in the country of habitual residence.
In the United States, for example, the courts automatically assume jurisdiction of a custody case if the abducted child remains in the United States for more than a year. Decisions regarding the child will then be made according to United States law. A mother from another country would then have little chance of being granted custody of the child in her native country, for the US courts generally require that a foreign mother be residing in the United States before they will award her custody of a child living there.
This is precisely the reason why many mothers in Germany fail in court if they separate in the United States from their children’s father and hurriedly leave the country with their children. In such cases the fathers from the United States have a year to apply for their children’s return. They file the application with the authorities in the United States and in Germany. As a rule, the children will be back in the US within three to six months. The mothers who left the United States with their children have very little recourse. Even a German family court’s temporary order establishing Germany as the child’s place of residence has been shown to be ineffective in preventing the child’s return to the United States.
Jürgens Rechtsanwaltsgesellschaft assists affected parents to gain their children’s return. We work internationally with a network of attorneys specializing in family law. The first step is always to locate the abducted child. We secure the assistance of the local authorities in the country involved and engage detectives when necessary. The next step is asserting your parental rights in court.
A divorce will involve deciding which parent will be the primary caregiver. In practice, it is usually the mother. Access rights will then determine the other parent’s access to and contact with the child. The parent awarded access rights must clarify certain issues: When will the parent with access rights have contact with the child? How long are the visitations and where will they take place? Who is responsible for the child’s transportation to and from visitations? Will the child be picked up by the parent with access rights or brought by the parent with custody? These matters must be carefully decided. As family law specialists, we recommend that the children’s needs be given priority. Consideration of their needs should also extend to the larger family context such as siblings, grandparents, and other members of the family.
Calculating child support is complicated. In principal, the parent who is not the primary caregiver must pay child support for minor-aged children. The level of child support is not dependent on the primary caregiver’s income and is entirely based on the income of the parent obligated to pay support. In practice, the exact amount of support to be paid is calculated using the Düsseldorfer Table, a child maintenance guideline. The minimum support to be paid is based on a doubling of the child allowance accorded by German income tax law. The January 1, 2008 revision of the German Maintenance Law gives children absolute priority in the distribution of support, regardless of whether they are legitimate, illegitimate, or adopted.
The obligation to pay support for one’s children does not end when the ex-spouse remarries. The situation only changes when the children reach adulthood, with both parents then being required to share equally any costs associated with their adult children’s education. Therefore, their obligation to financially support their children does not automatically end with their children’s adulthood and in fact continues for as long as their children are completing their professional training or academic studies.
Acknowledgement / Denial of Paternity
Whether a paternity is being acknowledged or denied, the procedure from a legal perspective is the same. The key question in both cases is whether a specific man is the father of a particular child. Only the court has the authority to establish the facts in such a case—with all of the ensuing legal consequences for the father. In practice, paternity suits are generally brought by the mothers of illegitimate children because the father denies responsibility for the child and refuses to pay support. In other cases fathers seek to have the court establish his paternity against the wishes of the child’s mother. The process becomes difficult when the mother is married to another man, although the man bringing the paternity suit is indeed the child’s biological father. In such cases the law will declare the husband to be the father. Such suits are also brought by husbands wanting paternity clarification. This matter, too, can only be resolved by a court.
Jürgens Rechtsanwaltsgesellschaft offers legal counsel in all matters concerning adoption law. We inform you, for instance, about which formal procedures must be observed, which declarations must be made, and which parties must be notified. The parents must, as a rule, agree to an adoption. This is relevant, for instance, to the adoption of stepchildren. In other cases, it will be necessary to involve the youth welfare agency. At Jürgens Rechtsanwaltsgesellschaft, an attorney certified in family law will make certain that you follow all of the law’s relevant procedures correctly when adopting a child in Germany or having a foreign adoption recognized in Germany. Adopting adults raises unique legal questions: When, for instance, the owner of a company chooses to adopt a nephew or niece to ensure ongoing family ownership, both parties need to carefully consider the adoption’s impact on other potential heirs to avoid future conflict.