«Fathers should not give in»
The most important information
When parents separate, an amicable solution to visitation arrangements is always the most desirable way forward. If both parties are unable to find a common denominator, mediation can help or the KESB can determine a visiting arrangement. However, an example from the lawyer Fabian Voegtlin shows that a legally clear situation does not necessarily mean that the ruling will be acted upon - for example, if the child is instrumentalised by one parent or decides for themselves that they do not value contact.
The father's right: Fabian Voegtlin also explains in the text when joint custody is merely a «meaningless shell» and how fathers should proceed if the mother does not comply with the rules on visiting rights.
Mr Voegtlin, what can fathers do if they want more contact with their child after a separation or divorce?
If the parents are divorced, the divorce convention or divorce decree must contain a care arrangement. This should apply if the parents are unable to reach an agreement. The same applies to judicial separation in matrimonial protection proceedings. If the non-custodial parent would like to have more generous visiting rights, the first step should always be to reach an amicable agreement with the other parent. If this does not lead anywhere, the only other option besides mediation is to go to the child and adult protection authority (KESB). If the parents are not married to each other, the KESB will also determine a visiting arrangement in the event of a dispute at the request of one of the parents. For the sake of completeness: In the latter situation, the KESB is only responsible if only the care arrangements are in dispute.
What are the legal requirements?
The decisive factor - both in the determination and modification of an arrangement - is the best interests of the child. The requested increase in visitation arrangements must be in the best interests of the child. Depending on the age of the child, the court or the KESB will hear the child itself. Whether a hearing takes place is decided on the basis of the circumstances and the discussion with the parents. According to the Federal Supreme Court, a hearing is generally possible from the age of six. Unlike in the case of joint parental custody, effective communication is not a prerequisite for more care. This is because if the parents are no longer able to communicate with each other, a visiting rights counsellor is appointed to assist the parents with advice and support. At least that's the theory.
And the difference between theory and practice? What can a father actually achieve through legal channels if the mother wants to restrict contact as much as possible?
Here is an example from my practice as a lawyer. The parents got married in 2007 and their daughter was born just under a year later. After three years of marriage, the mother applied for supervised visiting rights in matrimonial proceedings, which were rejected in both the first and second instance. Instead, the father was granted unaccompanied visiting rights. The mother did not adhere to the arrangement set out in the marriage protection order, which is why the father filed a petition for enforcement, which the mother in turn contested without success. In the divorce proceedings in 2013, the parents were then able to agree on a visiting rights arrangement. A year later, the mother filed a request for modification, possibly requesting an order for supervised visiting rights. The KESB suspended visiting rights for the time being, but ordered accompanied visiting rights in the final decision. This decision was once again unsuccessfully contested by the mother. Despite this arrangement, which has been in place since the end of 2015, no visits have taken place to date. The KESB is currently investigating whether the mother has instrumentalised the child or whether it is also the child's actual will not to see the father.
So the legal path can be quite long.
Indeed, especially if the mother repeatedly opposes the requested extension of visiting rights. However, it should be noted that the mother cannot successfully prevent the father's visitation rights by obstructing them - unless there are circumstances that jeopardise the child's welfare that are blamed on the father. As a rule, the mother will also not be able to boycott the visitation arrangement by making unfounded accusations.
The child has a right to see the father.
In your opinion, what is the value of joint custody?
Since 1 July 2014, the Civil Code has provided for joint parental custody as standard. The conditions for deviating from this principle or subsequently changing to sole parental custody are subject to high hurdles. The law stipulates that parental custody can only be withdrawn in certain cases if other child protection measures have been unsuccessful or appear to be insufficient from the outset. This shows that the legislator considers the value of joint parental custody to be very high.
Is this also reflected in practice?
Most fathers and mothers want to be involved in the decision-making process when it comes to medical interventions, career choices or the like for their child. In reality, if the parent with custody does not involve the other parent in advance, the decision has often already been made and cannot be reversed or can only be reversed with great difficulty. In such situations, joint custody degenerates into a meaningless shell. A guardianship can provide a remedy for future decisions, although not too much hope should be placed in this.
What basic advice can you give to fathers who come to you?
I firmly believe that fathers should not simply give in, but should fight back. Visitation rights are - as the word suggests - a right to which the father is entitled. At the same time, the child also has a right to see the father. Depending on the initial situation, I suggest the following procedure:
- Versuch einer bilateralen Lösung
- Mediationsversuch bei einer qualifizierten öffentlichen Beratungsstelle oder durch einen geschulten Mediator
- Einleitung eines KESB-Verfahrens als ultima ratio
Where can fathers find help if lawyers can't help them?
Depending on the situation, an attempt at mediation by a trained mediator can smooth the waters and be effective.
