The father's right of access – legal situation, scope& InfoThe father's right of access is regulated by law, although when it comes to the child's contact with parents, case law establishes that a child has a right to contact with both parents. Especially for fathers, the right of access is very important, since joint children usually live with the mother after a separation. For the father, the question therefore quickly arises as to his right to contact or to have contact with the dog. how often he is allowed to see his child. This article explains the legal provisions of the visitation rights for the father and explains when the mother may deny the father the right of access or when the father may deny the child the right of access. Mother withdraws the child from the father. He does not get a right of contact.
The most important information in brief
– Both the child and the father have a right to contact with each other. – A consensual access arrangement is desirable, otherwise a court visitation order is necessary. – How often a father is allowed to see his child depends on individual agreements or court regulations.
Legal situation regarding the father's right of access and its regulation
The right of access must not be confused with the right of custody. According to the German Civil Code (BGB), each of the two parents is entitled and obliged to have contact with the minor child, whereby the main intention of the contact is always the child's welfare.
At the same time, the child has a right to contact with both parents, which may not be suspended without good cause.
"The child has the right to contact with each parent; each parent is obliged and entitled to contact with the child."This right exists from infancy to adulthood and can only be restricted or excluded if the child's well-being is endangered. Furthermore, the parents must refrain from worsening or negatively influencing the relationship with the other parent."
"The parents have to refrain from everything that impairs the relationship of the child to the respective other parent or makes the upbringing more difficult. The same applies if the child is in the care of another person."
What does the right of access include?
According to the right of access, the aim is always to promote the development of the child, to create the best possible framework conditions and to support the bond with both parents. In addition to personal contact (visits, vacations, contact by telephone), the right of contact also includes information about the child's well-being, the right to give gifts to children, and decisions about care and feeding. Accordingly, the right of access includes the following elements:
– Personal contact (incl. (vacations, phone calls) – decisions about nutrition and care – information about the child's well-being and personal circumstances – decisions about matters of daily life and in emergencies – possibility of contact by phone, SMS, chats or mail. – The right to give gifts to the child. – Entitlement to care for the child during contact.
Distinction from custody
Again and again, the goals and legal provisions of custody are confused with the right of access, but these are different legal aspects. After a separation or divorce, the father's joint custody remains unaffected, as does the father's right of access. If the father was not registered as the father after the birth of the child, paternity must first be acknowledged in order to apply for joint custody.
Even if the parents live separately or only the mother has sole custody, the father's right of access still exists. Parental custody entitles the respective parent to make decisions for the minor child that are important for his or her way of life. This includes, for example, the right to determine the child's whereabouts and the care of persons and property. The right of access, on the other hand, is only the right to regular contact between the child and parents as well as other important persons of reference, z.B. of grandparents, siblings or foster parents.
– A right of access also exists in the case of sole custody. – Parental custody entitles to make important decisions in the life of the child. – The right of access is a right to regular contact between the child and the father. After a separation, the parents usually share custody. Making important decisions in the child's life (z.B.B. education, medical interventions) together. If the mother has sole custody, the father retains at least the right of access. This right cannot be denied, provided the contact is not detrimental to the child's welfare. The right of access therefore remains for the father until a court decides otherwise.
If the father has only the right of access no joint custody, he may see the child and maintain contact. A father without custody rights can only be denied access if there is a risk to the child's well-being. Without joint custody, however, he is not allowed to make important decisions in the life of the child.
– The only difference for a father with custody and a father without custody is the decision-making power for important life ies of the child; both have access rights. – Both a father with custody and without custody has a right of access, unless it has been excluded due to a risk to the child's well-being.
Right of access of the father with a new partner
Jealousy of the father's new partner is not sufficient to restrict the father's right of contact. On the right of access a new partner of the father has no effect. This may not be used by the mother as a reason for refusing contact with the father. She can only deny the father's right of access if the new partner endangers the child's welfare. According to this, mothers cannot deny visitation rights.
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What form does the right of access take??
If there is good communication between the parents, the right of contact with the child can be extended and deviate from the usual contact regulations. A consensual contact arrangement that is in the best interest of the child and promotes good contact with both parents is desirable. The duration and dates of contact can be determined individually and agreed with the child.
Contact arrangements for babies, toddlers and teenagers
Of course, the regulations for small children are different than for infants or teenagers. Especially with smaller children and babies, it is recommended to make the visits shorter and more frequent. Thus, the relationship with the father can be strengthened. It is not taken away from its familiar environment for too long. In the case of older children and teenagers, however, the visitation time can be longer and combined with overnight stays. In most cases it is agreed that the father may see the child every 14 days on weekends. For holidays and birthdays, parents usually decide that the child spends them alternately with the father and mother.
Alternative access arrangements
It is not always possible for the father to see the child on weekends because he has to work. In this case, the parents can make individual agreements so that the father can see his child. The same applies to night and shift work, because flexible agreements are also necessary here to ensure contact with the child. Incarcerated fathers also have a right to contact with their children, provided that the prison has a father-child group or appropriate facilities.
The residential model for fathers with or without custody
The residence model is the most frequent and most common agreement to regulate the father's right of access. In this case, the child's habitual residence or place of residence is. The child's center of life is with the mother. The father has contact through visits. Under the residential model, the following guidelines are usually chosen for the father's visitation rights:
– Infants: 5 hours per week – Kindergarten children: one day per week or two days every two weeks – School children: every other weekend from Friday afternoon to Sunday evening
If the child and the father live far away from each other, it may make sense to extend visitation rights to the vacations. During the vacations they can also spend longer time together or take a vacation together.
The alternating model for fathers with custody
More rare, but possible, is the alternating model for fathers with custody. In this model, the child's center of life is with the mother half the time and with the father the other half of the time. The child lives with the corresponding parent during the time of contact. The alternating model is used if both parents have joint custody and live close to each other or if the professional situation makes an alternating model necessary. Nonetheless, the alternating model usually involves more time and effort. Can be a burden especially for the child.
Deny the father's right of access
Contact can be denied by the child, the father as well as the mother. It is not uncommon for the mother to try to deny the father access by refusing, but this approach is not permissible. In principle, it is not advisable to act on one's own authority, because the right of access must be restricted or excluded by a family court. It is advisable to seek help from the youth welfare office or the court. The right of access can only be denied if the child's well-being is endangered. These could be:
– Infectious diseases – Abnormalities of the child – Addiction problems of the father – Danger of abduction
In this case, the right of contact can be restricted or paused for some time, but a complete exclusion of contact in the long term is only possible in serious cases via a court restriction.
Restricting contact if the mother has sole custody?
If the mother has sole custody, she can impose some restrictions on the nature of contact. Who has the sole custody, may set rules for contact. For example, she can forbid the father to pick up the child by motorcycle or forbid contact with third parties. In this case, important decisions in the child's life are only to be made by the parent with sole custody.
Child refuses contact with the father
The child can also refuse contact with the father, but this does not change the father's right of contact. Other caregivers should act on the child to encourage contact with the father. However, it must always be questioned why the child vehemently resists and does not want any contact. On the one hand, it can be an important sign from the child that something is wrong with the relationship with the father (child abuse, addiction problem) or, on the other hand, it can be a goodwill towards the mother, since the child knows that the mother does not get along with the father or that she does not like the contact. Even one negative word about the father can lead the child to refuse contact for the sake of the mother. The older the child, the more the wishes of the child should be respected.
Father refuses contact with the child – Is there a duty to contact?
What happens if the father himself refuses contact with the child?? According to case law, the father is not only entitled to contact, but also obliged to it, so the father has a duty to contact the child. In practice, however, it is counterproductive to force the father to have contact. This approach is not conducive to the child's well-being. It is also not possible to enforce the alternation or residence model against the will of a father. However, if it can be proven that forced contact is beneficial to the child's development, the father can be legally forced to have contact. The father has a duty of contact, but can only be forced to have contact if the contact is beneficial to the child's development.
Enforcing access rights in court – What to do?
If the parents are unable to reach an amicable contact agreement, the claim must be enforced out of court or in court. If necessary, a father who is denied contact must sue for the right of contact. A father entitled to contact has a right to support. Advice on all questions of the right of access. He can therefore consult the Youth Welfare Office, which will act as a mediator. The youth welfare office then takes care of:
– The implementation of the access rules, agreements and court orders – The information about the child's circumstances – The establishment of access contacts
The court always decides according to the best interests of the child and makes contact arrangements that best serve the child's needs. All details of the case are taken into account. If the mother still refuses to have contact with the child despite court-ordered contact arrangements, this can lead to an administrative fine or custody.
Enforcement of judicial contact arrangements
For example, if the court has ordered that the father may see the child every other weekend starting at 4 p.m. on Friday afternoon, but the mother and child are never present at that time, this can lead to legal consequences for the mother. She is required to promote and support contact with the father by adhering to agreements.
However, if she shows disagreement, then depending on the extent of the offense, this can lead to an administrative fine or imprisonment for an order. Furthermore, the court can deprive the mother of the right of residence and order bailiffs to pick up the child and hand it over to the father.
– If the mother refuses contact despite a court-ordered contact arrangement, this has legal consequences (administrative fine, compulsory detention, revocation of the right to determine where the child lives).
Who should the father contact to enforce his right of access??
If no communication and agreement with the mother is possible, the father should first contact the Youth Welfare Office to claim his right of access. The father can perceive a free consultation with the youth welfare department and thus get an overview of his extrajudicial and judicial possibilities of action. The Jugendamt first tries to find an out-of-court solution. Try to work out a sensible contact arrangement with the mother. If this is not possible, the court route must be taken. Consultation with a family law attorney is advisable in order to enforce the claims before the family court. The court will then consider which arrangements for visitation rights are in the best interests of the child. The father and mother must comply with the contact arrangements stipulated in the court decision, otherwise there will be legal consequences for them.
What can a family law attorney help a father with in terms of access rights??
As soon as the right of access has to be sued for, a lawyer is recommended. Before the family court, however, there is no obligation to be represented by a lawyer if the access rights proceedings are not clarified as a subsequent matter of a divorce case. A lawyer helps you as a father to enforce your rights and claims in court. Under certain circumstances, an out-of-court amicable agreement with the mother is also possible with the assistance of the lawyer. A lawyer for family law advises you in detail, explains your claims and rights, tries to reach an out-of-court agreement with the mother or, if necessary, files an application for contact with the family court and enforces your claims in court.