Judgment claim on half child care mostly excluded

Federal Court of Justice (BGH): The best interests of the child and will are crucial for parental care
A living father can hardly enforce half of the care of the common child in constant disputes with his ex. Although the law provides for such a "change model" on an equal footing, according to a resolution published on Monday, February 27, 2017, (decision: XII ZB 601/15) of the Federal Court of Justice (BGH) in Karlsruhe. However, the family courts should only order this if it corresponds to the best interests of the child; this, in turn, requires parents' ability to exchange and collaborate.

Thus, a father from Franconia can still hope to be able to look after his 14-year-old son in a weekly change with his divorced wife. The couple had divorced after nearly 25 years of marriage and has since been a regular in the dispute, which is repeatedly fought in court.

For children over the age of three, nap can be counterproductive if there is no sleep deficit. (Bidl: S.Kobold / fotolia.com)

The parents, however, have joint custody and were able to agree in January 2013, initially on a regulation. After that, the son remains mostly with the mother. The father should take the son every two weeks on the weekend. The handling during the holidays was regulated.

But his father's contact with his son was not enough. He demanded an access control according to the so-called equal exchange model. His son should always come to him on a weekly change.

The divorced wife rejected this and justified this, among other things with the recurring disputes with her ex-husband. The desired exchange model presupposes that one can talk to one another. But here the relationship is shattered. There is no sufficient ability to communicate and cooperate.

The district court Schwabach and the Higher Regional Court (OLG) Nuremberg rejected the application of the father for a court order of the change model. The right of access does not provide for an arrangement of the parity exchange model.

In its decision of 1 February 2017, however, the BGH objected. The exchange model is not excluded by law. Although the legal regulation is based on the so-called residence model, in which one parent predominantly carries out childcare. A legal model that excludes other care models, but this is not.

Rather, what matters is which care model corresponds to the best interests of the child. If the relationship of the parents is "considerably burdened with conflicts", a judicially arranged parity-based exchange model "is generally not in the well-understood interest of the child," said the BGH. The parity care should also not be ordered so that the parents first learn to cooperate with each other again.

However, the parity model can be ordered by court, if this not only corresponds to the child's best interests, but also to the will of the child. The older the child, the sooner the will of the child is considered, according to the BGH.

The OLG now has to decide on the specific case. This must listen to the child personally and determine which care model is in line with the best interests of the child and is suitable for the son.

The chosen care model also has budgetary consequences. While in the residence model, the parent receives child support, in which the child lives predominantly, the change model looks a bit different. Following a BGH decision of 5 November 2014, both parents are obliged to maintain (Ref .: XII ZB 599/13, JurAgentur report dated 17 December 2014). If both parents earn exactly the same, then no one has to pay the other child support. If, on the other hand, a parent has a higher income, he must compensate by paying cash to the ex-partner. fle / mwo