International Parental Child Abduction Germany
DISCLAIMER: The information on this page relating to the legal requirements of specific foreign countries is provided for general information only. Questions involving interpretation of specific foreign laws should be addressed to foreign legal counsel.
JUNE 2010
GENERAL INFORMATION: Germany is a party to the Hague Abduction Convention.
Germany courts govern custody decisions using a “best interest of the child” analysis.
To obtain a German passport for a child up to 12 years of age, both parents need to provide their signed consent on the application.
Children over the age of 12 must have regular passports. For more information, please see the Embassy of Germany’s information
on passports at: www.germany.info/Vertretung/
The U.S. Department of State’s Office of American Citizen’s Services and Crisis Management (ACS) posts additional information
on Germany at http://travel.state.gov/
LEGAL SYSTEM: The Basic Law (constitution) provides the basis for Germany’s legal system, which is based on Roman law and uses a comprehensive system of legal codes, as opposed to the Common Law system used in the United States where precedents from prior cases guide court decisions. Courts may also consider the laws of the European Union and the international community.
The German Police conduct searches for missing children.
Absent a court order, married parents have equal rights of custody to their minor children under German law. Absent a court order, the mother has custody of a child born out-of-wedlock, and the child’s father has visitation rights.
Family law courts handle divorce, custody, and Hague cases.
RETAINING AN ATTORNEY: The U.S. Embassy in Germany does not advocate for or recommend specific attorneys but does maintain a list of German attorneys who specialize in custody cases at: http://germany.usembassy.gov/familymatterslawyers.pdf.
To represent the left-behind parent in court hearings related to Hague Abduction Convention applications, the German Central Authority can appoint an attorney who will often have prior experience with Hague cases and good command of the English language. An applicant must pay a fee of 1500 Euros for these legal services when submitting the Hague application. A parent unable to pay this fee may apply for German legal aid. Under certain circumstances, legal aid may also be available in cases of international child abduction from Weisser Ring, a charitable organization: www.weisser-ring.de. For more information, contact: info@weisser-ring.de.
Parents may also choose to retain private legal counsel in Germany to handle their Hague application. A parent who hires private counsel should notify both the German and U.S. Central Authorities.
CITIZENSHIP & PASSPORT MATTERS: Children born in Germany and/or to parents of German citizenship acquire German citizenship according to specific laws outlined
on the Embassy of Germany’s website, at http://www.germany.info/
While Germany recognizes the concept of dual nationality, Germany generally considers a dual national in Germany to be a German citizen only. German law generally does not recognize more than one citizenship unless an individual acquires two citizenships by birth.
Germany does not allow a child to be included on a parent’s passport. Children under the age of 12 are routinely issued a Kinderreisepass (or children’s passport) valid for six years or until the child turns 13. The United States does not accept these documents for travel to the United States without a visa, but European nations and other countries around the world do accept them for visa-free travel. Germany requires both parents’ signatures or proof of sole custody to obtain a Kinderreisepass, but the child does not have to appear when the parents submit an application. If both parents share custody, either parent’s refusal to sign the application will prevent issuance of the passport.
Germany also issues 6-year maximum validity passports to children under the age of 18. Germany requires the consent of both parents (or proof of sole custody) before issuing a 6-year passport to a child. Like the United States, it also requires a child to appear in person at the time of application.
For more information, please see http://www.germany.info/
Children under age 16 must have a passport (Kinderreisepass or regular passport) to fly between Schengen countries. When traveling by car/train from one Schengen country to another, however, there are no border controls.
Exit Permits: Germany requires both an entry and exit stamp in the passport, but border police do not keep immigration records.
On the basis of a German court order, German immigration can place a departure hold on a child to prohibit the child’s removal from Germany. Removal of the hold can only be executed at the request of the court.
Any minor traveling alone or with a non-custodial parent should carry an authorization from the custodial parent; however, neither border officials nor airlines routinely request proof of this consent.
MEDIATION: The German Federal Government is extremely supportive of mediation programs to resolve international parental abduction cases. While courts cannot order cases into mediation, judges can and do strongly encourage mediated resolutions and can stay hearings to permit parties the time to mediate. In general, social workers, family lawyers and judges not hearing the case can serve as mediators in their particular geographic region. Fees are normally based on hourly rates, but a sliding scale or negotiated rate is sometimes available. Costs can vary between 50 and 250 EUR per session (60 minutes).
The Bundes-Arbeitgemeinschaft für Familien-Mediation (BAFM) or the Federal Consortium for Family Mediation (http://www.bafm-mediation.de) is a privately-funded, countrywide mediation organization with a network of multi-lingual mediators in all 16 German states. The German Central Authority and the judge hearing the Hague case work together to identify cases that are potentially suitable for mediated resolutions and make recommendations accordingly. Participation in mediation is voluntary.
HAGUE ABDUCTION CONVENTION: The Hague Abduction Convention entered into force between Germany and the United States on December 1, 1990.
Germany’s Central Authority is the Bundesamt für Justiz, -Zentrale Behörde -, Adenauerallee 99-103, 53113 Bonn.
Tel: +49-228-99-410 - 40
Fax:+49-228-99-410-5401
E-mail: int.sorgerecht@bfj.bund.de
Internet: http://www.bundesjustizamt.de/
Germany is one of the United States’s strongest partners under the Hague Abduction Convention. Although Germany was cited in previous U.S. Compliance Report’s on the Hague Abduction Convention for “the unwillingness on the part of some judges, law enforcement personnel, and others within the child welfare system in Germany to vigorously enforce German orders granting parental access or return of children in both Convention and non-Convention cases,” German compliance has improved significantly following introduction of a systematic training program on Hague procedures and expansion of the international liaison judges program. Cooperation on Hague cases has become the norm.
A parent seeking the return of his or her child from Germany or access to his or her child living in Germany may submit an application with the U.S. Central Authority (USCA). Although it is possible to submit a Hague application directly to the German court, the USCA recommends first contacting the Germany country officer in the Office of Children's Issues. The country officer can answer specific questions and provide general guidance in preparing the application. For information on eligibility and an application (specific to Germany), parents should call the Department of State’s Office of Children’s Issues at 1-888-407-4747.
The Office of Children’s Issues will provide guidance and direct assistance on preparation of the Hague application materials and recommends that parents open a case and speak to the country officer prior to preparing specific documentation as noted below. In general, to apply for assistance under the Hague Abduction Convention, a left-behind parent will need to submit the following in both English and German:
- A completed application form (specific to Germany) for each child. This form is not available on the Internet, but may be obtained by calling or faxing the Office of Children's Issues of the U.S. Department of State.
- A detailed account of the circumstances of the removal from the United States or retention in Germany. In this account, the parent should, if possible: address issues such as custody rights, the child's residence, and consent to the removal or retention; include details on the location of the child in Germany (or any information available to assist the German police in locating the child); and, if the application is not made within 12 months of the removal or retention, include an explanation for the delay in making the application is suggested.
- One copy of either the custody order that was in effect when the child was taken to/retained in Germany or the state law that establishes the applicant’s right to custody, and any agreements regarding custody or access. Note: It is not necessary to obtain a post-abduction court order of sole custody to apply for assistance under the Hague Convention. Obtaining such an order may actually complicate your case.
- If no custody order exists, and the applicant’s state's laws are silent as to a parent's right of custody, an affidavit of law from a U.S. attorney is often acceptable.
- Original photographs of each child and of the taking parent. There is no requirement for the size of the photograph, but the photograph should be as current as possible and show enough detail to assist government officials who will use the photographs to locate and identify the child and taking parent. These photographs will not be returned.
- If the applicant wants the German Central Authority (GCA) to appoint an attorney for him/her, he or she must include with the application a payment of 1500 EUROS, made in either euro or U.S. dollars by certified check or money order to Generalbundesanwalt beim Bundesgerichtshof. This payment covers court costs and attorney fees for the initial Hague petition. Any unused portion of the fee will be repaid to the applicant. If the case is appealed, the GCA will charge an additional amount to cover additional court costs and attorney fees. A parent who is applying for legal aid must submit the legal aid application, available through the USCA, with the Hague Abduction Convention application. The legal aid application must be a signed original, completed in German, with the currency amounts listed in euro and should include supporting documentation verifying income, with the relevant information translated. If you wish the German Central Authority (GCA) to identify an attorney for you, enclose payment of attorney fees (1500 EUROS) or a completed German legal aid application (see Legal Aid below) with translated supporting documentation.
- If the applicant is concerned that the taking parent will flee or hide the child when notified of the application, it is very important to include this information, including the reason for this concern, in section VIII of the application or on a separate page. It is helpful if this concern is repeated in a cover letter or note attached to the application.
Note: Court orders and all supporting documentation submitted with a Hague application must be translated into German in order to be accepted by a German court. Official documents (court orders, etc.) must be translated by a sworn translator (vereidigter Übersetzer). Letters, statements, and other documentation may be translated unofficially.
Once the U.S. Central Authority (USCA) forwards a complete application to the German Central Authority (GCA), the GCA will try to confirm the child's location and attempt to seek a voluntary return while beginning to process the application. If the applicant believes, however, that direct contact with the other parent may cause that parent to flee with the child, the applicant should state this fear in the application, provide specific reasons for this statement, and outline what course of action he/she proposes.
If the taking parent is not willing to return the child voluntarily, either the GCA appoints an attorney to represent the left-behind parent in court hearings or the parent can choose to hire his or her own private German attorney. If the GCA is appointing the attorney, the USCA will inform the applicant as soon as the GCA provides the name, address and telephone number of the attorney assigned to the case. To the extent possible, applicants should attempt to work directly with their German attorney. If at any time, however, applicants have questions concerning the operation of the Convention, they may contact the USCA. If the German attorney has any questions concerning operation of the Convention in Germany, he/she should contact the GCA. The GCA deals only with issues arising from the Hague Convention, not with general divorce and custody proceedings.
The GCA then petitions the German court for return or access and a hearing date is set.
The GCA's goal is to forward the case to the competent court within seven days of receiving the completed application; this includes all necessary documents and translations to substantiate the facts of the case, as well as payment or a completed legal aid application. Hague proceedings are heard by a designated local court located within each Higher Appeals Court district.
An applicant's right to pursue a child’s return under the Convention is contingent upon the parent having existing custody rights that were being exercised at the time of the child’s removal to or retention in Germany. Custody rights may result from a court order that precedes the child's removal to/retention in Germany or be established by state statute or case law in the state of habitual residence. In either case, the applicant must submit written proof of his/her custody rights, translated into German. Custody rulings obtained after removal/retention are not helpful in establishing rights of custody to demonstrate eligibility to seek remedies under the Convention.
In Germany, decisions on applications for return under the Hague Abduction Convention may be appealed by either party. The request for an appeal must be filed within two weeks of the initial decision. The two-week period begins immediately after the local court, family division, has served its decision on the legal representatives of each party. An additional attorney's fee may be required for the appeal. Given the short time-frame within which an appeal must be filed, applicants may not be able to obtain a complete copy of the decision prior to the deadline. Applicants should contact their German attorney directly to prepare the appeal.
After an appeal is filed with the competent Oberlandesgericht (higher court), proceedings start with presentation of papers from the local court. This process takes about two weeks. After receiving the records and the pleading of the appellant and deliberating on the case, the Appeals Board of the Oberlandesgericht decides on the measures to be taken in order to make a final decision. The Court of Appeals can make a decision on the documents submitted alone, or it can schedule a hearing. A decision by the Court of Appeals is usually final.
CIVIL REMEDIES: Germany does recognize U.S. custody decisions, but the process is not automatic. The left-behind parent must obtain a certified translation of the order, hire a local attorney, and petition the German court of the jurisdiction where the child is located to recognize the order. If the German court order does not include specific enforcement provisions, a second enforcement order will be required. (Please note that an application filed under the Hague may be impacted by acceding to the jurisdiction of a German court.)
Local court orders are directly enforceable, and they can they be appealed.
Custody decisions are made in the best interest of the child. The court considers factors including: the child’s age, family relationships/bonding, enrollment in school, home environment, immigration status, etc.
Germany’s custody laws include the German Civil Code, Title 5 (available online at http://www.gesetze-im-
CRIMINAL REMEDIES: Depending on the specific circumstances, parental child abduction can come under the following crimes: serious trafficking
in human beings; kidnapping; child stealing; trafficking in children; deprivation of liberty; kidnapping for extortion; or
hostage taking. See the German Criminal Code, sections 234, 235, 236, 239, 239a, 239b at http://www.gesetze-im-
There is a bilateral extradition treaty in effect between the United States and Germany based on dual criminality. The Germans will extradite a non-German on an international parental abduction charge if the circumstances of the case meet the German legal criteria.
Germany does not extradite its own citizens.
VISITATION / ACCESS RIGHTS:Family law courts determine visitation/access rights.
Access can be applied for during divorce and custody process and as a separate action under the Hague Convention. According to local law, any child has a right to see both parents, regardless of who has custody.
There are enforcement mechanisms in place for visitation/access rights if the German court specifically orders the enforcement to the access order. At the discretion of the court, non-compliant parties can face monetary sanction and/or a bailiff can be ordered to seize a child. The German courts are, however, very reluctant to use force in access cases.
EMBASSY CONTACT INFORMATION: U.S. Embassy in Berlin, Germany: http://germany.usembassy.gov/
Embassy of Germany in the United States: http://www.germany.info/
Central Authority of Germany: http://www.bundesjustizamt.de/
Other Government Websites |
