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Love before the law: child custody set for overhaul

David Wroe · 2 Jul 2010, 11:34

Published: 02 Jul 2010 11:34 GMT+02:00

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In 2003, Harshad, a British citizen of Indian descent, had a baby daughter with his German girlfriend. Knowing nothing of Germany’s idiosyncratic custody laws, Harshad went along with his girlfriend’s suggestion that they skip the laborious process of registering joint custody.

It wasn’t until the couple split that Harshad discovered the enormity of that choice.

“I had no idea it would cause so many problems,” said Harshad, a 44-year-old IT professional. “My ex-girlfriend had said, ‘It’s nothing to worry about; from the paperwork point of view, it’s far easier not to do it, and I said, ‘Okay,’ not really understanding the situation.”

What it meant was that, after the separation, Harshad, who asked that his name be changed, had no claim to be the legal guardian of his daughter. Even if his former girlfriend were to die, custody would pass not to Harshad but to the mother’s parents.

Just to get visitation rights, Harshad had to fight a court battle because the mother claimed he might kidnap their daughter and take her to Britain – a suggestion Harshad brands “ridiculous,” especially given he has since married and had another child in Germany.

Unlike most comparable countries, Germany gives sole custody to the mother when unmarried couples separate, unless she consents to joint custody. It’s a law that critics lambaste as outdated and blind to the reality of modern patchwork families.

France, Belgium, Spain and Australia, as well as most US states, have long since abandoned this approach and now start from a presumption of joint custody – meaning both parents have a role in raising their children after separation unless there are sound reasons to favour one parent over the other.

For non-German fathers in Germany, the problem is particularly acute as they are often unfamiliar with the law here and even encounter a subtle culture of prejudice within the system. In one notorious case, a single father of Polish descent was told by the Jugendamt – the office that deals with child custody – that he could not speak Polish with his children.

Discriminating against fathers

And it’s not just the fathers' lobby that is complaining. In December, the European Court of Human Rights ruled that German custody law discriminates against unmarried fathers by denying them custody without the mother’s consent. The government is now reviewing the law, with a bill expected this year.

“German law has to change and will change,” said Thomas Meysen of the German Institute for Youth Human Services and Family Law, which is conducting research for the government on international comparisons of child custody law.

“There should be a possibility for fathers to get into joint custody without having to rely on the mother’s consent. In that sense, the law is deficient at the moment.”

Rainer Sonnenberger of Väteraufbruch für Kinder, which helps single parents – fathers and mothers – in custody cases, said his group had talked to about 350 politicians and found that about three quarters of them were in favour of joint custody. Yet the group remained fearful that there would not be enough political courage to tackle the sensitive issue properly.

“It’s very clear that there will be a review, but we are very much afraid that it will involve only minor adjustments instead of a full overhaul,” he said.

Neel Patel, who has also been a complainant before the European court, has his own sad story to tell. He signed a declaration of joint custody when his son was born but had it overturned by what he regarded as a prejudiced family court in the Berlin district of Pankow-Weissensee.

“What shocked me was how direct they were. They basically said, ‘Look, it’s a German mother we’re talking about, so just shut up.’ I was left with the feeling it was just an illusion that as a foreigner I had rights here.”

Prejudice against foreigners?

The issue that turned the court against him, he says, was that he demanded his son be sent to a bilingual – German and English – school. Under joint custody arrangements, both parents get a say in their child’s education.

But the court decided that, because Patel (whose name has been changed to protect his son's identity) was born in the western Indian state of Gujarat, his native language was Gujarati and that therefore he had no right to demand his son learn English.

“It was a black-and-white scandal,” Patel said. “I speak English and I wanted my son brought up speaking English. I wanted the right to natural language heredity.”

Berlin’s Justice Ministry did not respond to repeated requests for comment.

Patel says that although the courts granted him visiting rights, he backed away and stopped seeing his son, now aged nine, to spare the boy the trauma of continuing conflict – a decision he describes as a “sacrifice.” Now, he runs a website devoted to helping fathers in similar situations, particularly those of foreign backgrounds.

“A lot of fathers and foreigners don’t know their rights,” he said. “They don’t even know they can apply for joint custody.”

Harshad agreed there were elements of racism in the system. “I sometimes feel I’m being judged by the colour of my skin – not necessarily being Indian but just non-German – it’s just a little bit of extra mistrust there,” he said.

But Thorsten Bauer, spokesman for the Federal Justice Ministry, which has oversight of custody law, denied there was systemic discrimination in the courts or Jugendamt though he acknowledged foreign parents could “pose a challenge” when it came to consultations at youth services offices.

“In many countries - not only in Germany - some parents with foreign nationality get the impression of being discriminated against in custody conflicts,” Bauer said.

Story continues below…

Jason, an IT professional for a military contractor, found the easiest solution was to bypass the system altogether. He found the Jugendamt so impossible to deal with that he insisted he and his ex-partner sort out their differences privately regarding their eight-year-old son.

“I just don’t recognise their laws,” he said. “I give (my ex-girlfriend) the regular child support and … then on the side, I pay her extra to keep things nice. I realised that I have to be nice because I’ve got no cards. I have nothing. There is no piece of paper saying I have any rights.”

Outdated attitudes

Few observers disagree that Germany retains a conservative outlook on male and female parental roles – a key reason, critics say, for the outdated custody laws.

“They’re still really out of step with the rest of Europe,” said Harshad. “There’s this idea that men go around shagging and spread their seed, while women look after the children. A lot of social workers in the Jugendamt grew up in a different era and have a different values system from those of most young people today.”

Certainly there are few legal areas so fraught as the raw emotion of relationship break-ups when children are involved. The motives of the players are complex, said German Institute for Youth Human Services and Family Law’s Thomas Meysen.

“The mother’s rights or the father’s rights are not the most important questions,” he said. “In family conflicts, usually one parent feels they are the loser. The one that does might blame the authorities, in this case the Jugendamt.

“In break-ups ... people’s feelings get hurt and most of the time, they’re fighting about something else, not the custody. Then they make it an issue of rights: ‘I have a right to the child and the mother - or the father - does not.’ Where are the child’s interests in that?”

David Wroe (david.wroe@thelocal.de)

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Your comments about this article

14:08 July 2, 2010 by cocovelvet
........ the discussion over child custody, especially involving parents from different nationalities, will remain a hot issue in Germany. Sometimes I couldn't believe the stories I heard from some disgruntled acquitances who felt they were being treated unfairly ; just plain prejudice on the other party. But as long as this Jugendamt is still involved in trying to "resolve" issues, the other party will always feel disadvantaged. I believe in turning to the courts even though it involves a lot of money and time, than this Jugendamt who seem to be always ready to play favours.

I really believe that someone who said he and his girlfriend decided to avoid the Jugendamt and deal with the issue on their own ; sometimes its better that way even though one has to be also extra careful not to land again in a trap of being told things are okay in certain ways when infact its not.
23:14 July 2, 2010 by saycheese
Well, hell...even in the USA, Father's rights are discriminated. They will pay lip- service to it, but the father must spend thousands of dollars just to get custody. Since most fathers couldn't afford to challenge the legal system, they just accept the inevitable...to be a marginalized and disenfranchised parent! Zillions of complaints about visitation rights being withheld by the mother are completely side-tracked and ignored by the courts. The whole system sucks, completely ignoring the fact that it really does take two to tango. There are a lot of good fathers out there, demonized by women's rights and the general malaise towards the male sex.
12:27 July 3, 2010 by ReaderX
plus one for the above by saycheese.

The whole system sucks for fathers who could in many cases do a better job than the mother. Granted the children should be able to have both parents in the home at all times.

While in today's world this really doesn't hold true. The father is generally both in the US and apparently in Germany, the one who gets the short end of the stick.

But it's about time this subject be brought up to the peoples attention and changed. Hopefully for the betterment of fathers all across Germany.
23:05 July 3, 2010 by JohnnesKönig
I must say that it saddens me to read that I am not the only one in my (and my children) predicament... But it is more about the kids being slighted than me as a father... I think kids deserve the very best parents can give them. Even if I must eat some crow now and then. But that is not always good for kids to see. What image will the kids have of fatherhood? A man in the US has less of a chance as one in Germany...
08:55 July 4, 2010 by Prufrock2010
The legal fiction in the US (and apparently here in Germany) is that the law is required to consider first what is in the best interests of the child. This is seldom the case, from my experience. Parents and courts alike routinely treat children as chattel and determine child support payments according to the mother's needs rather than those of the child. Mothers use visitation rights as a bargaining chip to extract more support from the fathers. For a divorced or unmarried father to obtain custody of the children is virtually impossible unless the mother is a convicted felon sentenced to prison. In almost every case the mother is PRESUMED by the law to be the more fit custodial parent. This is patently wrong.

Until the law catches up with reality, a father's only recourse if he wants to maintain joint custody of his children is to enter into a binding, written custody agreement with the mother in case of separation or divorce, assuming the mother acquiesces. If there is no meeting of the minds between the parents, the father should engage a guardian ad litem (lawyer) to represent the interests of the child or children. They are persons too, and are entitled to their own legal counsel no matter how young they are. They need to be adequately represented in the courts, especially as the parents are treating them like personal property and pawns in a power struggle that the children did not create. In no event should a father rely on an informal oral agreement with the mother, as it backfires virtually 100 percent of the time when petty arguments begin between the parents.
15:38 July 4, 2010 by CTMaloney
I also, as a foreign parent, did not know what I was getting into when I married a German woman. We lived overseas, but she insisted that the 3 births be in Germany. She divorced and got the court and Jugendamt to hide her location for 5 years, and from the time the oldest was 7 I was not allowed to see my children. She got me arrested twice on trying to cross the border, with false accusations which the courts automatically accept, and claims for child support which of course I did not give as I was no longer consider a parent. The 3 are now adults but TOTALLY brainwashed against me- worst case of Parental Alienation one can imagine.

The Jugendamt is of Nazi origin and has never mended its ways. It is time Germany reformed its laws to the principle of PRESUMTIVE EQUAL PARENTING. And "best interest of the child" is usually not possible except with "best interest of all family members."

How would YOU like to lose your beloved 3 children totally??
21:53 July 4, 2010 by A-FATHER-IN-DISTRESS
"To the world you may be one person, but to one person you may be the world."

Hi my name is Daniel a United States citizen, I'm a father in distress. My ex-wife Angelika a German citizen, abducted my 3 children in 8/2002 from the United States where they were born, they were taken to Germany in the town called Neuss with the help of her father Johann , her brother Josef and her sister Betina. At the start she gave me access to my children by allowing me to visit Germany a year later for 2 weeks on 3/2003 under torturous conditions and then she came to America without prior notice for 2 weeks on 2/2005 under the same torturous conditions and that was the last time I ever saw them again, over the time she has denied me access by making all sorts of excuses as to why I couldn't see or speak to my beautiful children. Ever since she has gone on with her life and doesn't want me in the picture and doesn¦#39;t allow my children to really express how they feel about me and if they do they have been brainwashed to hate me. I love my children and only want to continue to see them and be their father. It now seems their mother has chosen a new father. Am I supposed to just walk away and forget my children? I can't, I love them to much they are my life.

I'm definitely a dad in distress, I'm, angry, I¦#39;m sad, I'm upset, I¦#39;m depressed, I'm frustrated at a system that seems to forget father's. We seem to be at the bottom level. I cannot afford to continue fighting through the courts when all my ex-wife seems to do is ignore my countless efforts to allow me to talk and see my children that I adore.

My children names and ages are, Michael D, age 12, Nicole A, 10 & Christopher J, 8, It is causing great distress and I have been in a severe depression and destroyed ever since the abduction of my children which has been affecting other areas of my life except the desire to be a loving and caring father and having them in my life so they don¦#39;t forget how much I love them and that I¦#39;m their daddy. I think about my children day and night I can¦#39;t get them off my mind and never will until the day I die.

I had no other choice then to seek help from several doctor¦#39;s to help me cope and deal with the not having any contact with my children and then the sudden tragic death of my mother to a heart attack on 2/2007 because she could not deal with seeing her son go through such emotional and mental torture and loosing the grandchildren that meant the world to her. I¦#39;m not wallowing in self pity, instead I¦#39;m standing up for my right¦#39;s and following my heart. Something needs to be done to change how the courts in Germany handle custody issues when it comes to single father's and non-German parents because if they don't they will continue to destroy lives like they have mine .
12:29 July 5, 2010 by Prufrock2010
Father-in-Distress --

Maybe this article will be helpful:


There are American and International legal mechanisms available to persons in your situation. Parental abduction of children is a crime under US law and the Hague Conventions. I hope you investigate the resources available to you and I wish you the best of luck in finding and reuniting with your children.
15:01 July 5, 2010 by moistvelvet

whoa that is terrible, I can only imagine how you feel but even then that probably isn't anywhere near, really do hope your desperation can be cured with some humane logic.

The main article raises some serious fault in the German system in how it treats foreign nationals, the alienation and discrimination on different levels, but discriminating non-German fathers is simply on an entire different level and has to be the worst.
07:03 July 20, 2010 by EinWolf
"France, Belgium, Spain and Australia, as well as most US states, have long since abandoned this approach and now start from a presumption of joint custody ­ meaning both parents have a role in raising their children after separation unless there are sound reasons to favor one parent over the other."

Not tru, the US is still very biased against fathers!
22:39 November 20, 2010 by distressedFather
In the hope that this helps others, I wish to share my story.

I'm a father of a 1.5 years old born to a German mother. We were not married and were separated (no longer romantically involved), but we both lived in the US, my son lived with her, and I saw him every week or so, paying for his day care and some child support to her (no court determination was ever made), picking him up from day care, taking him to the doctor, and spending at least 2-3 days with him at a time.

During this time, I asked my ex to agree to a legal joint custody, and she said (with the help of a psychologist-mediator) that not only should I drop the request, but also that if I go separately to a court, this will harm the development of our son. She said that we should work together so that our son is raised by well-communicating parents, and that working together entailed having no legal agreement.

In July she told me that she's going to Germany with our son, and I said that I cannot agree to that unless she returns within 2 months. She agreed, but never agreed to write anything on paper. Indeed, 1.5 months into her visit to her home country, she told me that she is not coming back. Telling her that this constituted child abduction, she said that she had full custody, so she has done nothing illegal.

Now, here are the lesson that I learned so far:

(A) facts on the ground mean everything to the court, even if you got those facts in illegal ways.

(B) Most states in the US (especially, Ohio) give NO CUSTODY RIGHTS to an unmarried father (believe me, I already spent more than $25,000, and the trial did not even start). It does not matter that you EXERCISED CUSTODY RIGHTS, and it does not matter that you have been a perfect father to your son. The father has no rights, so indeed international child abduction does not hold water.

(C) Women seem to be in general much more manipulative than men. While a generalization, most men are brought up assuming that what you say is what you mean, especially if you look innocent. So, it now seems that she played me for 1.5 years until it was the right time for her to return to Germany. She knew about German law being better for her, and was afraid that I'll hold her here, if I had any custodial rights assigned by the court.

What will happen with my son? I truly do not know. It has been now 3.5 months since she took him, and it is unlikely that I'll be able to see him in the near future. I'm putting all of my financial strength behind this legal fight, but it seems that the legal system is strongly biased against men and especially unmarried men. I wish my son understands what I went through when he is old enough. I will try everything to stay in touch with him, but I can tell that my ex has all the power and that it is unlikely that I'll see him before he is 10 or even later. There goes your belief in mankind.

Dying-inside father.
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