NOTES ON GERMAN DOMESTIC LAWS REGARDING CHILD ABDUCTION
Section 1632 of the German Civil Code provides that custody over a child includes the right to claim the child from anyone who keeps him unlawfully.
If 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.
German 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.
It 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.
According 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 circumstances.
Joint 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.
The 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.