NOTES ON GERMAN DOMESTIC LAWS REGARDING CHILD ABDUCTION
1632 of the German Civil Code provides that custody over a child
includes the right to claim the child from anyone who keeps him
one parent claims the child from the other parent, then jurisdiction
lies with the local family court. In the ensuing court proceeding, the
judge examines any arising custody issues and also hears from the child.
domestic law does not have a summary proceeding that would correspond
to the Hague Convention's return mechanism. Instead, each German
domestic request for the return of an abducted child may lead to a
review of the custody issue, and it is generally advisable for a parent
who leaves the marital home to take the children with him, as long as
he does not take the child abroad.
has been suggested that this practice in domestic cases may also lead
the German courts to conduct a more thorough evaluation of the
circumstances in Hague Convention requests for the return of the child
than might be done in other countries.
to German law, custody is held jointly by a married couple until the
child reaches the age of 18. For children born out of wedlock, custody
is usually held by the mother; however, the father may obtain joint
custody together with the mother through a joint declaration made
before a notary or by marrying the mother. During and after divorce
proceedings, the family court awards custody either jointly to the
parents or to one parent while giving rights of visitation to the
other, unless this would be harmful to the child under the
custody for divorced parents is a fairly new institution in Germany,
having been enacted in 1997. It is possible that the courts may still
be reluctant to award joint custody and may still be inexperienced in
dealing with the problems arising from joint custody. In all custody
decisions, the guiding principle of the court is the welfare of the
child, and the decision will be made to promote this purpose.
abduction of a child from Germany to a foreign country is a criminal
offense, punishable by up to 5 years in prison or a fine. Equally
punishable is the unlawful retention of a child in a foreign country.
Either offense, however, is punishable, but only if the person entitled
to custody presses charges or, if the prosecutor decides that there is
a special public interest in the prosecution.