The issues of custody and contact right usually concern the most sensitive issues in connection with family law disputes. Who should have custody of a minor child after a separation, divorce or dissolution of a partnership? Where should this child live primarily? How should the contacts between the child and the other parent be structured and how should the care take place? It is obvious that conducting such proceedings in court is not comparable to conducting other contentious civil proceedings.
“Winning” and “losing” do not exist as such, especially in custody and contact rights proceedings, as it should only depend on what is best for the respective child in the specific life situation. Of course, there is also a time-wise component: if a child’s circumstances change significantly, a decision or agreement once made will have to be revised; unlike civil proceedings, so-called guardianship proceedings therefore only come to an end when the child concerned reaches full legal age. What some may have thought of as “winning” today can be reversed over time.
From a legal point of view, there have been several significant legal adjustments in the last ten to fifteen years. From the normal case of sole custody of one parent after a separation or divorce and an essentially 14-day right of contact on the weekends of the other parent, a standard model of joint custody (or custody of both parents) has emerged. However, this is not synonymous with equal care of the child in everyday life, but only relates to the authority to represent the child. This is in our experience often misunderstood.
The judiciary on the right of contact has meanwhile changed in such a way that contacts are now often granted in a wider scope than those outlined above. This in turn has led to changes in the case law on child support, since above-average joint care of the child by the other parent can lead to a reduction in the child support obligation, depending on how many days the child in question is cared for by whom. But how many (care) hours are there in a day? Is night counted as part of the day? Contact rights or childcare times and child support have therefore experienced an amalgamation that often plays a role in guardianship proceedings. From the age of 10, children are also to be heard personally in the proceedings (usually by the responsible judge). From the age of 14, children can also submit their own applications in the process and a decision on custody, primary place of residence and right of contact is no longer possible against their seriously and firmly declared will.
However, innovations in formal terms have also developed: Family court assistance was created, a position with social work and psychologically trained employees who work for the guardianship court and make recommendations. The court has the option of appointing child advocates for the children affected by the proceedings and ordering parental counselling. As a further option, the court can still commission experts to draw up psychological reports for the child in question. Ultimately, this is the greatest challenge for understanding such procedures: knowledge of the legal situation alone is basically no longer sufficient in guardianship procedures. Ultimately, a specific child with its own specific needs and interests is always at the center of a guardianship process. This requires a comprehensive and, above all, future-oriented view of such processes.