If both parents retain custody after a divorce, moving with children is often a desire for the parent in care. However, not including the non-caring parent in the planning is a serious mistake.
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Normally, both parents retain joint custody of their children following a divorce. Thus, both continue to have the duty and the right to care for their minor children and their welfare and upbringing.
In matters of daily life the parent with whom a child lives has the authority to make decisions alone. This includes the following issues:
- Television viewing,
- pocket money and
- Visits to relatives or friends.
In important matters, in procedures of considerable importance, however, both parents have a right to participate in the decision-making process. This means that they must agree with each other on these points. This concerns, for example:
- decisions in the case of medical interventions or
- the choice of religion.
Thus, an important matter in terms of custody is the right to determine the place of residence. This states that if both parents share custody, they must also jointly agree on the child’s whereabouts. Thus, the whereabouts may still be freely decidable in the case of a day trip without notifying the other parent. In the case of a vacation, the situation is quite different again- and even more so in the case of a move. In the case of a move involving a change of residence, the consent of the noncustodial parent who also has custody is therefore necessary.
1. Moving with child after separation
A move changes the living circumstances of a child very much. This concerns not only a new environment, a different school, going to school, leaving friends, but also a change in contact with family members such as grandparents or- Of course, in particular- a parent staying behind.
In some cases, it may be just a move to the same neighborhood or apartment block. However, the parent living separately from the child may have legitimate reasons for not wanting to move and must therefore be able to give consent.
2. Consent required in the event of a move
For example, if the mother with whom the child lives is planning to move because of a new partner or a new job, it is necessary that she discusses this with the child’s father and obtains his consent.
A move is not one of the decisions that the mother can make alone. If the mother nevertheless moves without the father’s consent, she is even guilty of child abduction ("deprivation of minors") and must reckon with heavy penalties.
Now, if the father feels that the planned move will jeopardize his relationship with the child or interfere with his custody or even visitation opportunities, he can refuse permission for the move. If the mother still insists on the move, she can have this decided by the court.
There, she could try to obtain sole custody, which would then also allow her to decide the child’s whereabouts at the same time. Normally, however, both parents will argue before the family court about the sole right of residence, i.e. only about a part of the right of custody. All other rights and duties of custody then remain untouched. The family court will then try to decide with a view to the best interests of the child.
In the case of Moving abroad many aspects of the child’s life change:
- a new language
- a new environment
- foreign customs
- greater distance to the second parent
Therefore, the courts are particularly strict in the case of a move abroad.
3. Examples from case law:
a) Move from Slovakia to Germany
- A German mother, who had filed for divorce from her Slovakian husband in Slovakia, took her two minor children from Slovakia back to Germany to take up a job there. Both parents shared custody, but the children lived with the mother before the move. However, the woman did not have the father’s permission to take the children with her to Germany.
- The father applied for the return of the children to Slovakia under the Hague Convention on the Civil Aspects of International Child Abduction, 25.10.1980 (HKu). The court ruled in favor of the father because the mother had illegally taken the children from their familiar environment to Germany.
b) Moving to Mexico
In another case, the mother wanted to move with her daughter to Mexico to live with a new partner. But the father of the child wanted to prevent this move, because he saw his relationship with the child endangered due to the great distance and because he thought the mother had not planned her future and that of the child well enough. In court, both parents then fought over the sole right to determine where the child would live, in order to be allowed to decide for or against this move in each case.
In the first instance, the mother was granted the sole right to determine the place of residence. But the Federal Court of Justice (BGH) overturned the ruling and referred the case back to the Higher Regional Court in Munich. There it should be clarified whether a move was really in the child’s best interest: if the child stayed with the father in this case, it could be better for the child.
In general, I think it’s also important to note that there is no advantage to either parent in such decisions in court, where the child’s best interests are at heart. There is also no so-called mother advantage. In each individual case, it will depend on the weighting of many individual points. These could include, for example, the following aspects:
- How close is the relationship of the child to the father/mother??
- How much is the visitation right of the parent who stays behind restricted??
- How well planned is the move?
- Under what circumstances will the child live in the new environment?
- What social ties does the child have in the new environment?
- Are the child’s development opportunities worse after the move?
Here again the reference to a sentence of the higher regional court Munich to the last mentioned example case: "Rather the decision is always to be made due to a comprehensive consideration of the child welfare aspects touched in the individual case.“
This means that the best interests of the child also take precedence over the legitimate interests of the parents (so also§ 1697 a BGB). Although the mother in this case wanted to give in to legitimate reasons to follow her partner abroad and also take up her own job there, the court ultimately saw that the best interests of the child had been given too little consideration in the decision at first instance (the final decision in this case is pending).
In case of disagreement about a move, separated parents should therefore not make a hasty decision, but approach it carefully. A "custody agreement can also help here. Ask a qualified family law attorney to handle your particular case.