Child custody in Germany after you separate: who decides what.

If you were married when your child was born, separating does not change custody: you both keep it, and nobody has to apply for anything. If you were not married, the mother has sole custody unless you made joint custody declarations, married later, or a court decided otherwise. Either way, the child has a right to see both parents.

Below: the difference between custody and contact, who decides what once you live apart, how sole custody and contact rules come about, why moving abroad with a child needs care, and what happens at the family court. How these rules apply to a particular family is always a question of that child's welfare.

1. Custody and contact are different things

• Custody (Sorgerecht, elterliche Sorge) is the right and duty to decide for the child: their care, upbringing, where they live, and their money and legal affairs (§ 1626 BGB, § 1631 BGB).
• Contact (Umgangsrecht) is time with the child. The child is entitled to contact with each parent, and each parent is both entitled and obliged to have it (§ 1684(1) BGB).

A parent without custody still has contact. And sharing custody does not mean the child lives half the time with each of you: where the child lives day to day is a separate arrangement.

2. Married parents: separation changes nothing by itself

Parents who were married when the child was born have joint custody. Separating, moving out, or divorcing does not end it. It continues unless a family court transfers all or part of it to one parent, and the court only does that on an application (§ 1671 BGB, section 5 below). Our guide to divorce in Germany covers the rest of the separation: the separation year, maintenance and pensions.

3. Unmarried parents: how joint custody starts

If the parents were not married to each other when the child was born, they have joint custody in three cases (§ 1626a BGB):

• they both declare that they want to share custody (Sorgeerklärung);
• they marry each other later; or
• the family court gives them joint custody.

Otherwise the mother has sole custody. The declarations must be officially certified, at the Jugendamt or by a notary (§ 1626d BGB). Recognising paternity is a separate step and does not by itself give the father custody.

If the mother does not agree, the father can apply to the family court. The court grants joint custody, in whole or in part, unless it is against the child's welfare, and where the mother raises no relevant reasons and none are otherwise apparent, the law presumes it is not (§ 1626a(2) BGB).

4. Living apart: who decides what

Joint custody after separation does not mean agreeing on everything. The law splits decisions in two (§ 1687 BGB):

• Matters of considerable importance need both parents. These are decisions that are hard to undo, such as which school the child goes to, a planned operation, or where the child lives.
• Everyday matters are decided by the parent the child usually lives with: things that come up often and have no lasting effect, such as bedtimes, doctor's visits for a cold, or a school day trip.
• During contact, the other parent decides the day-to-day care, such as meals and what the child does that day.

When there is danger and no time to wait, either parent may do what the child's welfare requires and must tell the other parent straight away (§ 1629(1) BGB). If you can't agree on a single important question, either of you can ask the family court to give that one decision to one parent (§ 1628 BGB), without changing custody as a whole.

5. Sole custody

When parents with joint custody live apart for more than a short time, either can apply for sole custody, or for part of it, such as the right to decide where the child lives (Aufenthaltsbestimmungsrecht). The court grants it in two cases (§ 1671(1) BGB):

• the other parent agrees, unless the child is 14 or older and objects; or
• ending joint custody and giving it to the applicant is expected to serve the child's welfare best.

Disagreement alone is not enough for the second route: the question is what is best for the child, not which parent is right. A father whose child's mother has sole custody under section 3 can also apply for sole custody, under its own conditions (§ 1671(2) BGB).

6. Contact with the other parent

Parents can agree contact however they like: weekends, holidays, video calls, birthdays. The law adds two duties (§ 1684 BGB):

• each parent must avoid anything that harms the child's relationship with the other parent; and
• if parents can't agree, the family court can set the contact and how it works.

The court may limit or exclude contact only as far as the child's welfare requires. A long or permanent exclusion needs a risk to the child's welfare. A middle way is accompanied contact (begleiteter Umgang), with a third person such as a Jugendamt worker or a support organisation present. If a parent seriously and repeatedly undermines contact, the court can appoint a contact guardian (Umgangspfleger) for a fixed period.

A parent who does not live with the child can also ask the other for information about how the child is doing, where they have a legitimate interest and it does not harm the child (§ 1686 BGB).

7. Moving, especially abroad

Deciding where the child lives is part of custody (§ 1631(1) BGB). With joint custody, a move that changes the child's life, and above all a move to another country, needs the other parent's consent or a court decision (§ 1628 BGB).

Taking a child abroad, or keeping them there after a holiday, without that consent can be child abduction under the Hague Convention of 1980, even if it is your home country. The other parent can apply for the child's return, in Germany through the Federal Office of Justice (Bundesamt für Justiz), and custody itself is generally decided by the courts of the country where the child lived before. If you are thinking about moving with your child, sort out consent or a court decision before you go.

8. If you can't agree: Jugendamt and family court

The Jugendamt first. Parents have a right to counselling from the youth welfare office when they separate, including help to work out a joint plan for custody and care, and to help with contact arrangements (§ 17 SGB VIII, § 18 SGB VIII). A plan you agree there can become the basis for a court settlement.

The family court (Familiengericht, part of the local Amtsgericht) decides when you can't agree. Cases about where the child lives and about contact must be handled with priority: the court should hold a first hearing within one month of the case starting, and it hears the Jugendamt there (§ 155 FamFG). The judge generally has to hear the child in person too; there is no minimum age, the question is whether the child can express their wishes (§ 159 FamFG).

You don't need a lawyer to apply in a custody or contact case of its own. The requirement to have a lawyer applies to divorce and the matters decided with it, and to certain money disputes such as maintenance (§ 114 FamFG). If your income is low, you can apply for legal aid for the court case (Verfahrenskostenhilfe, § 76 FamFG).

9. What to do now