The issue of joint custody isn’t limited to divorces involving married couples with children.
Even when two people who aren’t married have a child together, they should consider joint custody.
Unmarried parents must take an active role in exercising joint custody of their child.
In this article, you’ll learn what custody is and how to obtain it.
What exactly is custody?
When two people become parents of a child, they are (jointly) responsible for that child. This natural parental right is already guaranteed by the Constitution.
It goes without saying that a newborn child cannot take care of its own affairs or make decisions on its own. This right therefore belongs to the parents of the minor child or to the parent with custody.
Parental custody consists of personal care, management of the child’s assets, and legal representation of the child.
Personal Care
Personal care encompasses everything that affects the child’s daily life. This includes, for example, the right and duty to raise, care for, supervise, and determine the child’s place of residence (right to determine the child’s place of residence).
However, personal care also encompasses all matters related to school, education, medical issues, the child’s leisure time, and even the choice of religion (children may freely choose their religion starting at age 14).
Parental custody also includes the right to restrict or prohibit contact with certain individuals.
Financial Custody and Legal Representation
Financial custody encompasses the entire administration of the child’s assets. For example, a child can inherit property from the moment of conception.
Such potential inheritances are managed by the parents or legal guardians. Financial guardianship also includes the right to open savings accounts or bank accounts for the child or to invest the child’s money.
The right of legal representation includes, for example, the parents or legal guardians making decisions on behalf of the child or taking so-called legal proceedings—such as filing a lawsuit on the child’s behalf—to protect the child’s rights.
If, for example, the child is injured in an accident, the guardians can file a lawsuit on the child’s behalf to seek compensation for damages or pain and suffering.
How does one obtain custody?
It takes two people to conceive a child. While it seems logical that these two people should also be responsible for their child, not every family situation results in both parents being granted custody.
The key difference lies in whether the two parents are married or not. For married parents, it is presumed that the husband is also the biological father of the child.
Therefore, if both parents are married, they automatically receive joint custody.
Custody for Unmarried Parents
The issue of joint custody for unmarried parents is somewhat more complicated. Since a child’s mother is always clearly identified, the mother is granted sole custody in every case. This is not automatically the case for the child’s father.
Joint custody can only be granted to the father through a legal proceeding. This is relatively straightforward if the mother agrees.
In that case, both parents can submit a so-called “declaration of custody” to the Youth Welfare Office. If the mother does not agree to joint custody, the father can file a petition for joint custody with the family court.
In such a case, the family court will examine whether there are any grounds against joint parental custody—that is, whether it would not be in the child’s best interests.
If there are no grounds against joint custody, the family court will grant joint custody to both parents.
Do you have to make every decision together?
When two people share custody of a child, disagreements will occasionally arise.
While both parents should generally agree on important issues regarding a child’s custody, each parent has a certain scope of authority to make decisions independently on less significant matters.
Especially when parents live apart and share custody, it wouldn’t make sense for every decision to have to be made jointly and in agreement by both parents.
Matters of Daily Life
Therefore, one parent may make decisions regarding matters of daily life.
These matters include, for example, daily school life and school field trips, class trips, nutrition, bedtimes, routine medical care (e.g., routine checkups or dealing with childhood illnesses), and clothing.
One parent may also decide on their own regarding small monetary gifts or television and media consumption. However, this does not include, for example, consent to a student exchange program or decisions regarding larger monetary gifts or inheritances.
In such cases, a joint decision by both parents is always required.
Which matters must be decided by both parents?
Whenever decisions have a significant impact on the child, one parent alone cannot make the decision.
This is the case, for example, with the right to determine the child’s place of residence. Both parents must decide together where and how the child may live. In the case of short-term changes in residence, either parent may decide on their own.
However, for long-term changes, a joint decision must be made.
This applies, for example, if the child wants to spend a school year abroad or if a vacation abroad with one parent is planned.
The crucial question—what about religion?
When it comes to deciding which religion the child should belong to or what religious upbringing the child should receive, the parents must make this decision together, as the implications can be quite far-reaching.
However, once the child reaches a certain age, they have a say in the matter.
Starting at age 12, the child may no longer be raised in a specific denomination or religion against their will. Starting at age 14, the parents’ right to have a say is completely eliminated, regardless of whether they agree or not.
At that point, the child can decide for themselves regarding their religion.
Do you have any questions about joint custody or another matter where a certified specialist lawyer in family law can help you? Then give us a call at 030 / 890644-0 or send us an email at [email protected] . We’d be happy to advise you!
