Contact (law)
Visitation rights is a concept of family law. He describes the right to use a minor child with his parents and each parent with the child, in special cases, also third party's right to access to the child or the child with third parties.
The rights of access in Germany is regulated in the context of parental authority in the Civil Code; its enforcement shall be made in a non-contentious proceedings before the Family Court.
The right to advice and support from the Youth Office with regard to the exercise of rights: is defined in § 18 paragraph 3 of the SGB VIII.
Interaction between child and parent
In the relationship between children and parents visiting rights then gained practical importance if the parents live separately and / or the child does not live with the mother or the father.
Starting point of the scheme is the 3 BGB expressly laid down in § 1626 § basic idea that the child requires for its undisturbed development of regular contact with both parents. This general rule leads to the specific normalization of a right of access under § 1684, Section 1 of the German Civil Code: The child has the right to contact with both parents; each parent is obliged and entitled to access to the child.
In the case of parental separation follows from this explicit scheme, the obligation for those parent with whom the child has his habitual residence, to enable the handling of the other parent, to promote and to refrain from any interference. Conversely, the other parent has not only the right to use, but also a duty to do so. The amendment to the Family Matters from 1998 was in the Civil Code, the duty that was previously in second place, preceded by the law.
The right of contact with the child not cohabiting parent
Separated parents are generally free is to agree on a deal mode. If it comes on the design of handling a disagreement between the parents, call the Family Court, which has to regulate the use binding. This particular in the case of dealing refusal may be necessary.
The details of the contact arrangements must be made according to the circumstances of the individual case under consideration of the specific circumstances. Benchmark for the Determination of the specific visitation schedule is, as with all disputes in matters of parental responsibility, the child's welfare. It also follows that it is possible in exceptional cases, to prevent the use of a parent with the child completely when the welfare of the child, this commands (cases of child abuse or similar).
The custodial parent should allow the handling of contacts with the other parent not only, but the contact positively promote (OLG Saarbrücken, 8th October 2012, Case No. 6 WF 381/12 ).
A ruling by the European Court, the German Federal Government shall, in October 2012, a bill, according to which the biological father receives a right of access, as far as this is in the child's best interests. This is at least to be assumed by the Bundesgerichtshof opinion in general, if between the child and the father of a grown bond had passed through at times common domicile. The biological father whose child lives with the legal parents in a ( intact ) social family and the ( so far ) failed to establish a close personal relationship with his child is a colloquial and right to information is, under certain conditions, be granted.
Judicial proceedings
In court proceedings are to be heard:
- The child ( § 159 FamFG ); ( :; attorney for the child's guardian ad litem earlier) according to a method possibly assistance is. § 158 to order FamFG;
- Parents ( § 160 FamFG )
- The caregiver if the child lives there for a long time ( § 161 FamFG )
- The youth welfare office ( § 162 FamFG ).
Common legal practice is the provision that the child should spend every other weekend with that of the parent with whom it does not live, and in the school holidays for an extended period of time to be together along with this. For very young children and even if the parents live apart in large spatial distance, but a departure from this rule may be necessary.
The holder of access rights must always pick up the child at his own cost, return and tasty cuisine. In individual cases, different results can be taken at the end of a court handling procedure.
The unwillingness of a parent to accept the bond of the child to the other parent represents a deficit, which can provide the education ability of the person concerned in question. Are both parents to acquire parental responsibility willing and able and there is only one parent tends to impair the rights of access, it may give him an unfavorable custody arrangement occasion.
When Cochem model the judicial process is first exposed and a solution sought by extrajudicial agreement which should be supported by intensive networking.
Costs of custody
The contact should normally be made solely at the expense of legitimate colloquial parent. However, the respective other parent is required to take on the financial position of the colloquial parent with respect. Otherwise, there is a civil claim for damages from breach of duty according to § 280 para 1 BGB.
In addition, it is the responsibility of the family court, in particular to bring the obligations arising from Article 6 of the Basic rights of both parents in agreement. From this it is for the parent with whom the child lives permanently, the duty can be derived ( eg, to bring the child to the station or to the airport ) to the costs of dealing in an appropriate manner, the Federal Constitutional Court in 2002 (Decision of 5 February 2002 to participate Az 1BvR 2029/ 00).
The costs associated with the handling costs ( travel costs, costs of meals and the placement of the child ) can only be deducted from income in the calculation of maintenance if they are higher than average, perhaps because the other parent is far pulled away with the child. Deductible are the pure costs, ie the cost of the ticket or the cost of petrol, but not the mileage allowance.
Does the parent with rights benefits under SGB II, colloquially " Hartz 4", it can from the job center for a grant towards the cost of dealing obtained ( Administrative Court of Schleswig, NJW 2003, 79). With a new regulation of 2011 modifications were made retroactively place for January 2011. For the handling weekend has the child for all days with more than 12 hours together entitled to pro rata social money. The standard rate for a 6 year old child is at 251 EUR per month, thus the amount of entitlement for the handling time of ( standard rate divided by 30 days for all months ) 8.37 EUR per day.
The rights of the child
Significantly rare and still unclear is the question of the enforcement of the child to maintain contact with the other parent of the right, when it is trying to escape his parents' role, so is not ready for a regular contact with the child.
Although the child's claim is no doubt the wording of § 1684 Section 1 BGB in its enforceability is however disputed with weighty arguments. Again, would be to find a specification of the visitation by the objective needs of the child.
Whether dealing with an unwilling parent is indeed in the interest of the child, however, is doubtful. An irregular and especially unreliable exercise of rights by a parent may pose for the child with significant disappointment, the more damage may take him as an attitude of dealing with it.
It is doubtful still whether the dealing against the commonly subject to parent due to imposition of fines can be enforced. The Higher Regional Court of Nuremberg has denied the possibility of judicial enforcement of the claim handling, while the Oberlandesgericht Celle Cologne and have affirmed the possibility of a family court proceedings to enforce the child's right of access to parents.
The Federal Constitutional Court ruled in 2008 that a deal could not be enforced by penalty (Decision of the Federal Constitutional Court on 1 April 2008, AZ 1BvR 1620/ 04): "It is a parent reasonably expected to be required for access to his child, if the child's best interests. (...) The effected by the coercive threat of interference with the fundamental right of the parent to protect the personality then it is not justified unless there is in each individual case sufficient evidence to suggest that a forced approach will serve the child's welfare. "
Dealings between third parties and the child
An extension of access rights to third parties is restricted. § 1685 of the Civil Code provides for a right of access to the child for grandparents and siblings, if this is in the best interests of the child. Spouse or former spouse of a parent and spouse or former spouse of a parent also have a right to contact with the child, if they have lived a long time in the same household, and also this applies to persons with whom the child was in foster care.
Because a § 1626 § 3 BGB missing comparable requirement for persons specified in § 1685 of the Civil Code, the legislator does not believe that dealing with grandparents etc. readily to the same extent in the interests of the child, as in the parents of a child is the case, but requires the determination of the positive effect of dealing in individual cases. A commitment of persons referred to in § 1685 of the Civil Code for dealing with the child is foreign to German law.
Other persons with whom the child has bonds enjoy under § 1626 § 3 BGB usually a right of access, if the maintenance of the bond for the child's development is conducive.
Accompanied handling
The Family Court may When disturbed communication between separated or divorced parents a supervised approach (now called mostly " accompanied handling " ) order. The affected child is true then the parent with whom it does not live under the supervision of professionals in an appropriate facility. For this purpose a commission has developed professional standards on behalf of the Federal Ministry for Family Affairs, were adopted as recommendations for practice in the summer of 2007 and subsequently published.
Differences from other countries
In France, the handling warranty end on emigration from the city in half must contribute to the travel costs of the other commonly designated parent.