How can father lose his rights?
When can the mother deny the father the right of access?
A separation not only has consequences for the further life of the ex-partners, but also for possible children. Often the children live in the mother's household while the father lives separately from the family. Of course there is also the reverse case. However, the 2016 data report by the Federal Statistical Office shows that in 2014 there were 1.5 million mothers and 180,000 fathers as single parents, so that in nine out of ten cases (90%) the single parent is the mother. In addition, according to this report, the proportion of single fathers has decreased slightly since 2004.
For the development of children, it is fundamentally very important to have regular contact with both parents, including the separated parent. It must therefore also be made possible for a non-caring father to participate in the development of his child, to maintain his family position as a father and to prevent the child from becoming alienated.
Unfortunately, this right to visit, the so-called right of access, is a frequent point of contention in the event of separation and divorce.
- Right to regular contact
- Beware of groundless refusal of contact
- When can contact be refused?
- Exclusion of contact only if there is a danger to the child
- How can the father enforce his access rights?
1. Right to regular contact
According to Section 1684 (1) of the German Civil Code (BGB), each parent is entitled and obliged to deal with the child.
There is also a Loyalty Duty For the parents according to § 1684 Abs. 2 BGB: You have to refrain from everything that affects the relationship of the child to the other parent or makes it difficult to bring up. A parent disregards this as well Good conduct clause designated duty, this has legal consequences. The child and the parent who is not caring for them have a right to regular contact togetherthat the mother must respect and support.
2. Beware of unreasonable refusal of contact
Even if there is a contact arrangement, there can be situations in which the mother suddenly wants to refuse the father contact.
However, the mother cannot “just like that” refuse the right of access. The unfounded lack of contact can lead to a partial withdrawal of the mother's right of residence and the securing of the right of access by a guardian. If the mother tries to prevent contact with the father by moving abroad, even her custody can do so to question. If the mother thwarted contact again and again for no reason, this can also have an impact on the post-marital maintenance.
3. When can access be refused?
Only in serious cases the mother has the right to stop contact. Here are the main reasons:
- Abnormalities of the child: Separation-related abnormalities in the child, such as mood swings, alone are not enough to refuse contact with the father. Only if the behavior of the child is justified by the person or the behavior of the father, the right of access can be suspended, restricted or supervised contact can be requested. But even in these cases it is not advisable for the mother to act on her own initiative. In the first step, a regulation should be found in cooperation with the youth welfare office. In the event of a further dispute, the family court is responsible.
- Physical abuse of the child or the other parent's authorization to stop contact. However, it should be noted here that the mere allegation of child sexual abuse and the fact that the father is being investigated on the basis of this suspicion does not affect the right of access. The court must examine in each individual case whether an exclusion or any other restriction of access must take place, weighing the suspicion and possible risk.
- Kidnapping risk: The mere fact that the father comes from a Muslim country is not enough to assume there is a risk of kidnapping; on the contrary, there must be specific indications. Exclusion can only be considered if measures such as accompanied handling, depositing a passport and an order that handling can only be carried out in Germany do not eliminate the risk.
- Alcohol and drug addiction: If, due to alcohol or drug addiction, it is foreseeable that the care of the child cannot be guaranteed, the right of access can be restricted or completely excluded by ordering accompanied access.
- Infectious Diseases: These justify a refusal of contact only if the child cannot be protected from infection. Under certain circumstances, contact with a doctor or a nurse comes into consideration. An HIV infection does not exclude the right of access.
4. Exclusion of contact only if there is a risk to the child
An exclusion of the right of access for a longer period of time or permanently can only be granted by Family court and is only possible if there is a specific risk to the best interests of the child. Exclusion can only be ordered if the child is not at risk from a Restriction the handling or another arrangement can be sufficiently prevented. In particular, it must be clarified whether the endangerment of the child cannot be avoided by accompanied handling. With the help of a youth welfare organization or an association such as the Child Protection Association, the parents are provided with a neutral and psychologically trained supervisor who accompanies the contacts (Section 1684 (4) BGB).
5. How can the father enforce his rights of access?
If the mother denies the father the right of access to which he is entitled, he can sue for his right of access. In these cases, the court has the authority to regulate the child's contact and to issue orders (Section 1684 (3) BGB).
The court always has the so-called Child welfare principle of § 1697a BGB to decide. The contact arrangements must therefore be made that most closely correspond to the best interests of the child, taking into account all the details of the case.
If the mother continues to refuse contact despite a court order, this can be with you fineor orderly be enforced.
Due to an amendment to the law from 2013, the father can also have and enforce access rights if he is the biological but not the legal father within the meaning of Section 1592 of the German Civil Code (BGB). The legal father can be the mother's new husband, for example if he is already married to the mother of the child at the time of birth or if he has recognized the child's paternity. With § 1686a BGB the Rights of biological fathers strengthened. According to this, the biological father has a right of contact if he has shown a serious interest in the child and the contact is in the child's welfare.
- The separated father is also entitled to regular contact with his child
- An unfounded refusal of access can have legal consequences
- The right of access can only be restricted or excluded in serious cases; the family court decides on this.
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Franziska Hasselbach is a lawyer and specialist lawyer for family law. Her law firm, with offices in Cologne, Bonn and Frankfurt am Main, represents clients in divorce proceedings and advises on matters relating to maintenance, custody and access law as well as marriage contracts and separation agreements.
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