Germany

Parental abduction must always be a crime

A total of 92,895 children went missing in Germany in 2019. Though a lot of these missing children are cases of parental abduction, it is not clear how many since parental abduction is confusingly defined and underreported. In Germany, a child is officially classified as missing if their location is unknown for more than four hours and the police immediately start their search.

Call For Action

Child custody laws need to be updated so that both parents are given custody, including in children born outside of marriage. Both parents should also have the right to decide the child’s place of residence.

German authorities need to do more to spread awareness on and collect data on domestic parental abduction.

Family Law

Under German law, married parents have joint custody including after a separation or divorce. The only way for custodial rights to be taken away from a parent is for one parent to request this through the courts and with good reason. Living in two different places is not considered a good enough reason to terminate joint custody. Custody means that parents have the responsibility and right to take care of their child and that even after divorce, parents must communicate to decide on the best interests of the child. When that does not happen, the Family Court can intervene and grant sole custody to one parent. Usually, all parents have the right to access even without custody of the child. Where that parent lives or his/her nationality is not relevant here and the same right is applied to grandparents, siblings, and other people the child closely relates to and who have born some responsibility for the child. Interestingly, custodial rights can be divided in Germany. For example, while both parents may have joint custody, it is possible that only one parent has the right to decide the child’s place of residence. And so that parent could move to a new city or country with the child and without the consent of the other parent and would not be charged with abduction. When children are born out of wedlock, the mother is automatically granted sole custody of the children. This is alarming for the one-third of German babies born outside of marriage and whose father would not automatically be granted custody. The father, can, however, request custody by filing a so-called custody declaration at the Youth Welfare Office even before the child is born or by filing an action at the Family Court. Parental abduction is a crime in Germany under section 235 of the Criminal Code. German courts usually impose a return order if a child has been abducted abroad. It helps if the country that the child has been abducted to has signed the Hague Convention.

Parental Abduction

When a child goes missing within Germany, the police work together with other local forces. Thousands of officers are on standby across the country to help them, as well as local institutions such as fire departments, the Red Cross, and the THW (Federal Agency for Relief). German police also search for missing German children abroad with the help of Interpol. Germany defines parental abduction into two different terms: Kindesentziehung and Kindesentführung – the former referring to domestic parental abduction cases and the latter international cases. This is confusing but you should be aware of both terms to take any legal action to get your child back easier. While data on the number of international abduction cases does exist, there is no available data on the number of children abducted by a parent domestically. Given Germany’s relatively large foreign-born population (15%), it is not surprising that German-foreigner marriages have risen to a total of 2.3 million marriages. The children of these families are often at higher risk of international parental abduction when a marriage falls apart. One parent may want to return ‘home’ during the difficult times of divorce and take their child along without the consent of the other parent.

Parental Alienation

While parental alienation is not a crime in Germany, some judges do take accusations of parental alienation into account during custody court cases.

Prevention

The German state offers some preventive measures against parental abduction. For example, both parents must agree to the issuing of passports for their children. This way, it is not possible for one parent to legally provide the child with a passport to flee the country. With this alert system, a parent is informed if the other parent requests a passport for the child. Another preventive measure is a special Alarm and Preemptive Warning System in which border patrol is informed about the potential of parental abduction in an effort to stop parents from abducting children abroad. In any case: be sure to have the following documents with you at all times so that in case of an abduction, the administrative work for the legal process can be dealt with as quickly as possible:

The birth certificate of the child
The marriage certificate
Approval of your right to custody over the child
Documents that could indicate an abduction (e-mails, messages, letters, etc.)

If you have reason to believe your child is at risk of parental abduction, there are a number of things you should do:

Try communicating your fears with the other parents, perhaps with the support of a third-party, such as a friend, relative, arbitrator, or mediator.
Get in touch with the youth welfare office or a counseling agency that can share their idea about the situation, speak to the other parent and even organize a joint discussion.
Consider asking for supervised visitation for the other parent. This is a temporary solution that can be established by a voluntary agreement, often with the support of the youth welfare office, or ordered by a court.
You may also alert schools and daycare centers of the potential risk,

There are other preventive measures parents can take. These should be carefully considered given the potential to escalate the situation or affect the well-being of the child. Parents can apply for a court order to:

Transfer of the right to determine the child’s place of residence to you or to the youth welfare office.
A ban on relocating with the child without prior court approval.
An order to deposit the child’s passport at the youth welfare office and to submit a written document that proves that the other parent has notified the relevant consular office that he or she has deposited the passport.
An obligation to appear with the child at a competent office in regular intervals. This could be for example at a child welfare authority or child protection services or a police station at the place where visitation is exercised;
A call for a border alert for the territory of the Schengen States.

Missing Child

The very first step should always be to contact the police so that the child is classified as missing and an investigation can get started. The German police hotline is +110 If you can still contact the abducting parent, it is advised to take that step to at least try to agree without having to go beyond alarming the police. The stress of the extensive process of returning a child is not only tough on you but especially rough for the children. But if that doesn’t work, the authorities should know that the parent is violating the custody as soon as possible. With the right documents (the ones that we listed above) you can clarify this quickly. That way, you’ll be ensured that the police can use all the means necessary to find the child. You do not need a lawyer to file a case of parental abduction with the courts. You can contact the closest family court to start the legal work. Getting a lawyer is important but can be dealt with later. Since German courts do tend to take their time, these steps must be taken quickly. If your child has been abducted abroad:

File an application under the Hague Convention if the country to where the child was abducted is a Convention member

You can file an application with the “Bundesamt für Justiz” (Federal Office of Justice) in Bonn. This application will be forwarded to the country where your child was abducted to and that country should, in principle, take action to return or give you access to your child. You must file this application within a maximum of one year of the child being abducted. The application can be found here.

Actions you can take without the German Central Authority, especially for children abducted to non-Hague member countries

Parents can also directly contact the Central Authority or the local courts in the country where the child was abducted to. Aside from the Hague Convention, German parents have two other legal options: The first one is if there is a German court decision establishing that the left-behind parent has custody of the child and the right to decide on the child’s residence. In this case, the parent can attempt to have this German decision recognized by the country the child has been abducted to. Though the foreign court is not legally bound to recognize the decision, it is worth trying. Some international regulations that Germany has signed with foreign countries are based on the agreement that local custody decisions be recognized by other countries. Some that Germany has signed include the European Brussels II bis Regulation, the European Convention concerning Custody of Children, and the Hague Convention for the Protection of Children. Second, if the German courts have not decided on the custody of the child, the left-behind parent can still go before the foreign court to request a ruling by that court. Unfortunately, both of these legal options are time-consuming and expensive. Parents will most likely need a local attorney. The German Embassy or Consulate in that country, the Federal Foreign Office (Auswärtiges Amt), and the International Bar Association may be able to share a list of local attorneys who speak German. A detailed list of available legal options can be found here.

Request support

There are a number of local organizations that can help parents. You can reach the Missing Children Initiative by calling +116000 at all times for free to get immediate support in case of an unexpected and difficult initial situation after the abduction. The German Lawyer Hotline can quickly get you in touch with a lawyer that specializes in Parental Abduction to start the legal process. If you fear your child will be taken to another Schengen country (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland), you can apply for a border alert through the family court, i.e. the court of the place of residence, which will then initiate the border alert. Address of the Federal Police Department: Bundespolizeipräsidium Heinrich-Mann-Allee 103 14473 Potsdam The Federal Police Department can make sure that the border alert for the abducting parent and the child will be entered into the Schengen Information System (SIS) for the search measures to be initiated. The German Branch of International Social Service offers a Central Contact Point for Cross-border Family Conflicts. Their advice is especially important in the early stages of the fight to win back the child. You can reach them from Monday to Saturday between 09:00 AM to 05:00 PM at +49(0)30-62980 403 A parent can also request support and advice from the Youth Welfare Office

Seek an amicable solution

Given how time-consuming and costly court proceedings can be, parents may consider mediation to resolve parental abduction. Many courts and local organizations offer mediation services. Mediation is voluntary and entails the parents discussing and agreeing on where the child will live; when, where and how often the child will see the parents; child support, and any other issues. If parents are able to come to an agreement, it can be recorded by a judge and written into a legally binding and enforceable agreement. When mediation fails, parents must seek a decision through the courts.

Thanks

Thanks to Deniz Eker for the contribution in producing this country page.