Love before the law: child custody set for overhaul

In the wake of a European court ruling that German child custody laws discriminated against single fathers, the government is preparing an overhaul. The Local examines the painful reality facing parents when they split up.

Love before the law: child custody set for overhaul
Photo: DPA

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 It’s a law that critics lambaste as outdated and blind to the reality of modern patchwork families.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.

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?”

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