Who gets the custody?
The most bitter divorce processes do not usually rage about money or real estate, but about the question: who gets the children? It is the custody disputes in which parents struggle the hardest. "The dispute over custody is often a struggle for emotional support," says the Munich-based psychologist and lawyer Annegret Wiese. Losers are often the children.
Joint custody
The law assumes that children need both parents. Therefore, as a rule, it prescribes joint custody. Even if they no longer live together - the parents should make the most important decisions in their child's life together: which school does it attend? Should it go to communion or confirmation? If a medical procedure is necessary - where and by which doctor should it be operated on?
But not for every question that concerns the child, the parents must communicate. The one with whom the child lives may, in the context of so-called everyday care, decide on less important things alone. This includes, for example, with which friends the child may meet, whether it is in a sports club or learning an instrument.
When the parents are constantly arguing
Only when the parents are so divided that they can no longer reasonably communicate with each other, do the judges cede custody to one parent alone. This is still possible if, in the divorce process, joint custody was initially maintained, but later it turns out that the parents can not reach an agreement on the important issues.
For if father and mother are divided on a custody question, the judge has the last word. Any question that lands on his or her table becomes an indication that common concern in this case does not make sense. The court can thus cancel the decision on the common concern and grant sole custody to a parent. If you want sole custody of your child, you must apply for it in the divorce process. This often happens in revenge, Annegret Wiese has observed: "I have seen particularly blatant cases, if it was the woman who left the man." Even men who have never been to a parenting evening and do not know the children's friends would then fiercely struggle to exclude the mother from parental custody.
After that, judges decide
When deciding which parent the child is best placed in, the judges use three principles:
- Continuity: Where has the child lived so far? Where did it go to school, where does it have its friends?
- Binding: To which parent does the child have the closer relationship?
- Promotion: With whom does the child have the best opportunities to develop? Who is better suited to educate the child?
If the parents argue over these questions, the judges can hear witnesses, such as educators, teachers or neighbors. Even the child is allowed to have a say. If it is over 14, the court can not make a decision against its will. For smaller children it is often difficult to find out what they really want. As a rule, therefore, the Youth Welfare Office and often an expert are involved in order to consult them. "If the child beats suddenly and radically on the side of a partner, that is an indication that his will is determined by others," says Annegret Wiese. The child has the feeling that it must protect the allegedly weaker parent and should therefore no longer love the other.
You can do that
If you are worried about custody, you should keep your children with you during the separation phase. "Do not just pull out without your kids!" recommends lawyer Wiese. Otherwise, you will accomplish accomplished facts in favor of the other parent: If the children stay with their father in their previous home, the continuity principle speaks for him as their caregiver - a weighty argument in the custody process.
If, in the custody process, one ex-partner wishes to deprive the other of the care, parent qualities are often called into question. Then suddenly men portray the woman who has looked after her child for years as a bad mother: A day when the child went to school without lunch breaks becomes an indication of carelessness, a sentence like "I can not do it" evidence of a suicidal tendency. "If that happens, the mother will be pushed into the defense role," says Annegret Wiese. It has to be justified - the attacker, on the other hand, does not even have to prove that he is better at fulfilling the parenting role.
In order to prevent the custody dispute from becoming a mud fight, Wiese advises: "Do not hire an agitator as a lawyer! Only if you do not respond to allegations with angry counter-reproaches, you can bring the process back to a factual level."
Is custody still so controversial - Annegret Wiese regularly experiences in her practice that in everyday life many things are still quite different. Fathers who are particularly committed at work and who have largely entrusted the children to the partner during the marriage notice that it can be quite difficult to reconcile the needs of the children with their own lives. Everyday life with children - even if it's their own - they often have to learn first. Some fathers who have previously successfully fought for custody, therefore gradually withdraw and leave the mother to take care of the child in everyday life.
What is the stepfather allowed to do?
The new partner of a mother can not get the custody of his stepchildren. He may, however, have a power of attorney issued for certain situations - for example, to speak with the teachers about the grades of the child at the Parents' Day. But if the birth father of the child contradicts, the stepfather must not exercise this right.
visitation rights
Regardless of custody, each parent has a right of access with their children: they are allowed to invite them to their own home and spend time with them without the other parent. The right of access is not only a right of the parents, but also of the child. This means that, in principle, a child can ask to see his father or mother. It is still difficult to sue visitors: if a parent refuses to see the child, for example because he has started a new family and does not want to have anything to do with his old family, the courts will not force him to do so. By rejecting, argue the lawyers, otherwise the welfare of the child would be in danger.
In general, the right of access provides that the child lives with one parent and sees the other every other weekend and for half of his school holidays. If the parents live in the same city, visits to the week are often arranged. These should also be adhered to, advises Annegret Wiese: "Except for very few exceptions, children must have contact with both parents."
The book was published by Annegret Wiese: "The Divorce: A Legal and Psychological Guide for Women" (Humboldt Verlag, together with Otfried Dahme).
