Joint parental custody in the case of unmarried parents; applying for custody
Performance specification
If the parents are not married to each other at the time of the child's birth, they are entitled to joint parental custody since a new legal regulation came into force on 19 May 2013, if they declare that they want to take over parental custody jointly (so-called declarations of custody), if they marry each other or if the family court assigns parental custody to them jointly. Otherwise, the mother has parental care.
Thus, the following cases are essentially conceivable which lead to joint custody of parents who are not married to each other:
- After the birth of the child, the mother and the father, who has previously acknowledged his paternity, marry.
- The mother and father declare their consent to joint custody at the youth welfare office. The mother and father thus have joint custody.
- If one parent does not give his or her consent, the other parent can try to reach an agreement with the youth welfare office. If this does not succeed, or if he or she does not consider this approach to be promising, he or she can apply directly to the family court for custody. The court decides whether the mother will continue to have sole custody or whether custody will also be transferred to the father.
In the latter case, it is therefore necessary to conduct family court proceedings.
Process flow
The family court procedure has some special features and takes place in a graduated procedure. In certain constellations of cases, a written and very simplified procedure can be considered. With regard to the details, it is recommended to seek advice from the youth welfare office and, if necessary, from a lawyer.
Requirements
Special information for - District of Waldeck-Frankenberg- Paternity must be legally recognised
- the parents are not married to each other
- the mother had sole custody until now
- the parents are of age or their legal representatives consent
Note: Mothers and fathers who are not married to the other parent are entitled under Book Eight of the Social Code (SGB VIII) to advice on making a declaration of custody and the possibility of transferring joint parental custody to the courts.
Custody register, certificates on the absence of entries in the custody register
Declarations of custody and court decisions on the transfer of joint custody are recorded in the custody register of the youth welfare office responsible for the child's place of birth.
A certificate of non-existence of entries in the custody register (negative certificate) for children not born in a marriage can be obtained on application by mothers who have not made a declaration on joint custody, where there is no court decision on custody and who have not married the father of the child.
What are the fees?
Special information for - District of Waldeck-FrankenbergCourt fees are incurred for the court proceedings, and if a lawyer is involved, also lawyer's fees, which are based on the value of the proceedings. If joint custody is notarised by a notary, costs (fees and/or expenses) may be incurred. The issuing of the certificate on the absence of entries in the custody register (negative certificate) is free of charge.
Legal basis
Special information for - District of Waldeck-Frankenberg§ Section 1671 BGB - Transfer of sole custody in case of separation of parents
§ Section 18 Social Code (SGB) - Book Eight (VIII) (counselling and support in personal care, maintenance and contact)
§ 59 Social Code (SGB) - Eighth Book (VIII) (certification by the certifying officer at the youth welfare office)
§ Section 58a Social Code (SGB) - Book Eight (VIII) (custody register; certificate of non-existence of entries in the custody register)
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Who do I need to contact?
- For counselling: the youth welfare office responsible for the child's place of residence.
- Notarisation of joint custody: youth welfare offices or notaries public
- For court proceedings: as a rule, the local court (family court) at the child's habitual place of residence.
- For the certificate of non-existence of entries in the custody register (negative certificate): the youth welfare office in whose area of jurisdiction the mother has her habitual residence.