Custody - Transfer and withdrawal
When parents separate or divorce, joint custody of their children persists. The legislator assumes that in most cases joint custody is the best solution for the child.
However, the Family Court may, on request, transfer parental custody or part of it to the mother or father.
Note: A consensual transfer of custody without the involvement of the Family Court is not possible. Given the importance of the decision for the family, advice from a lawyer is recommended.
The Family Court may also revoke custody of its own motion. In most cases, such proceedings are initiated on the basis of suggestions or indications from third parties (e.g. persons close to the Youth Office or the child) which give evidence of a risk to the welfare of children.
- The transfer of custody to only one parent of the child is best in the best interests of the child.
In the context of divorce proceedings:
- A parent's application for transfer of custody
In the event of withdrawal of custody of its own motion:
- On the basis of concrete evidence, a risk to the best interests of the child appears to be justified and
- parents are unwilling or unable to avert this risk.
§§ 151 ff. Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (FamFG) (Verfahren in Kindschaftssachen)
§§ 1626 1698 b, Bürgerliches Gesetzbuch (BGB) (Elterliche Sorge)
In divorce proceedings, the court responsible for divorce also decides on custody when a parent requests the transfer of custody. The matter is part of the divorce proceedings in this case.
Even without divorce proceedings, a parent may apply for the transfer of custody. This is possible if the parents do not only live temporarily separated.
Parents can agree on who should be given custody. The Family Court then normally granted the application for the transfer of custody. However, a child over the age of 14 may object to this agreement.
In the event of disagreement between the parents, the court will consider which solution best suits the best interests of the child.
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Hessian Ministry of Justice
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