Over the years I have had several cases that involved parents and children who had a connection to Germany. In one case, the parents and their children lived in British Columbia, but the father was born in Germany and his business and professional network remained in Germany. After the parties separated, the father moved back to Germany and sought parenting time with his four young daughters in his homeland.
In a second case, mother and father, both German citizens, lived with their two children in British Columbia and upon their marriage breakdown, the mother took the two young boys to Germany, ostensibly for a vacation, but she and the boys never returned to Vancouver.
I quickly came to learn of the problems arising in custody cases for fathers and for non-German mothers in Germany. In the first instance my client was advised by a German lawyer that if the four girls came to Germany to visit their father, he well may retain the girls despite the custody agreement that provided for joint custody with primary residence to her in Vancouver.
In light of this opinion, we suggested to the father that if he wished to have access in Germany that he endorse an interim custody order which granted sole custody to the mother for the duration of the visit. This way if the father refused to return the children to their mother, she could presumably wave her custody order in front of a German judge. The trouble was that even that measure might be insufficient, given the German Court’s preference to rule in favour of German citizens and ignore the legal maxim that the “best interests of a child” are paramount.
Eventually, the access took place in England and in British Columbia because the father could not provide comfort to his ex- spouse that the German Court would rule in accordance with custodial principles that are recognized in most, if not all, developed countries.
In the second case, despite the mother’s abduction of the children to Germany, the children’s father was told by German counsel that it would be very unlikely that a German Court would return the children to Canada. As it turned out, he had difficulty even seeing his sons, both in Germany and in British Columbia.
There was a happy ending for this father, however, because when each of the boys turned twelve years old and were visiting their father in Vancouver, they each in turn, refused to return to Germany and testified in a British Columbia court that their mother had purposely thwarted their visits with their father and had disparaged him regularly.
An even more drastic situation is the discrimination against German fathers who have a child, wish to help raise that child, but because they are not married to the child’s mother have no right to legal guardianship of the child. If the child’s mother were to die prematurely, the mother’s parents would receive custody of the child, not the biological father.
The law in Germany provides that single mothers will be granted sole custody of their child, with no exceptions, unless the mother agrees to joint custody. It has been reported that many fathers in this category wage expensive legal battles just to obtain an order to visit their child.
For non-German fathers it is worse. In one case, a father from Poland was ordered by the German Court to refrain from speaking Polish to his German born child. Another father reported that the Court treated him as a nuisance and made it clear that custody of the child would never be granted to him.
The good news is that there has been a breakthrough for these fathers because of a recent decision from the European Court of Human Rights. The Court ruled that the law with respect to sole custody to mothers is discriminatory. The German government is now forced to review this draconian law to eliminate the discrimination.
Fathers’ Rights groups are hopeful that the government will do more than tinker with the legislation. Early polling of German legislators indicates that 75% are in favour of amending the law. Whether they act on their conscience or tow a political line will be the issue.
Lawdiva aka Georgialee Lang