In the custody battle, the children are to be heard

BGH clarifies requirements for common concern of separated parents
(Jur). Separate, unmarried parents must generally exercise joint custody of their child together. Only if concrete facts exist that the well-being of the child is endangered, can the sole concern of a parent be given preference, decided the Federal High Court (BGH) in Karlsruhe in a recently published order of 16 June 2016 (Ref .: XII ZB 419 / 15). In examining whether the well-being of the child is at risk, the hearing of children under the age of 14 can generally not be waived.

In this case, an unmarried and separated father had requested joint custody of his daughter, who is now six years old and living with his mother. A care explanation for the child was not available. An older son, born in 2000, lives with his father. Here is a joint custody agreement.

Always listen to the kids too. Image: Markus Bormann - fotolia

However, the mother refused to share her concern for the daughter. Your ex-partner blocks all communication. She also receives no information about the older child.

The youth welfare office considered both parents very sensible and reasonable. A common concern, however, can not work, because the parents argue over every little thing in court. The mother is afraid that the father wants to "take away" her child. The father fears a concern of the mother alone with the child.

The Higher Regional Court (OLG) Brandenburg awarded the father the joint care for his daughter. It emphasized in its decision of 3 August 2015 that a mother could not claim sole concern by arguing that she could not talk to her ex-partner (Ref .: 13 UF 50/15, JurAgentur report of 4 September 2015). Basically, separated parents would have to get involved in the common concern. However, the Brandenburg judges made their decision only in written proceedings without personal consultation of the parents or the child.

The BGH reversed the OLG decision and dismissed the procedure for re-examination. However, the Karlsruhe judges made clear that in principle the common concern for a child should be given preference. It is crucial how the best interests of the child are ensured. "The concern is to be transferred to the parents of the family court (...) even if it can not be determined whether the shared parental care better matches the best interests of the child as the sole concern of the mother," it says further in the decision.

If there were concrete indications that the child's well-being was jeopardized by a common concern, the court would have to follow it closely, the BGH demanded. In doing so, parents' parenting skills, the child's attachments, the consequences of custody transfer for the advancement of the child, and the child's will need to be examined.

But the rejection of the mother against the common concern does not speak against it. However, if the parents had a "serious and sustained disruption at the level of communication", so that "significant burdens on the child" were to be feared, this could be the reason for a sole concern by only one parent.

This should now check the OLG again and listen to the parents. Children under the age of 14 should also be heard regularly in order to be able to identify attachments, inclinations and the will to have children. This too should be made up. Only with particularly young children or with children who can not express their will, the hearing can be waived. fle / mwo