Child maintenance in the true shared custody model: Options available to the custodial parent regarding enforcement
The shared custody model, in which a child is cared for by both parents to an almost equal extent, is gaining increasing importance and presents new challenges in the legal assessment of maintenance issues. In a recent decision of the Schleswig-Holstein Higher Regional Court (Case No.: 8 UF 161/23, order dated 17.01.2024 – published on 26.01.2024), the question was clarified as to how the enforcement of child maintenance can be procedurally structured in the true shared custody model. In particular, this concerns the right of the applying parent to choose to file either an application for sole decision-making authority under § 1628 BGB or for the appointment of a supplementary carer under § 1909 BGB.
Legal framework of the shared custody model
Unlike the so-called residence model, the true shared custody model is characterized by the fact that the child essentially lives equally with both parents and is cared for by both. This equal participation means that both parents are also, as a rule, equally responsible under maintenance law. In practice, however, this often leads to conflicts, especially when one parent wishes to claim child maintenance and there is no agreement between the parents on how to proceed.
Legal obstacles to asserting maintenance claims
According to § 1629 para. 2 sentence 2 BGB, parents may, under certain conditions, assert maintenance claims for the child in their own name. However, this requires that there is agreement on this, or that one parent remains passive. In the true shared custody model, joint parental custody is the rule and therefore also joint representation of the child in maintenance matters. In the event of disagreement, a deadlock can occur.
The Schleswig-Holstein Higher Regional Court has made it clear that in this situation various procedural possibilities exist in order to secure the parents’ ability to act:
Application for sole decision-making authority under § 1628 BGB
A parent may apply to the family court for sole decision-making authority regarding the enforcement of maintenance. The court then examines whether the sole decision serves the child’s welfare and whether the conflict between the parents precludes a joint decision. If sole authority is granted, the parent concerned may assert the maintenance claim on behalf of the child.
Appointment of a supplementary carer under § 1909 BGB
Alternatively, it is possible to appoint a supplementary carer. This person acts as a neutral representative and acts solely in the interests of the child. Supplementary care is particularly considered if the parents’ positions are so opposed that an objective assertion of the maintenance claim appears to be at risk.
Practical implications of the choice
The right to choose between these two alternative courses of action follows from the child’s welfare and ensures that efficient and appropriate enforcement of maintenance claims remains possible even in case of dispute. The Higher Regional Court emphasizes that it is up to the respective parent, in the event of disagreement, to select the most appropriate option for the specific situation. The decision to apply for the transfer of sole decision-making authority or for the appointment of a supplementary carer depends on the individual circumstances, particularly the degree of parental conflict and the possibility of safeguarding the child’s interests.
Significance of the court’s decision
The case law of the Schleswig-Holstein Higher Regional Court provides an important impetus for practice by clarifying that the parent seeking maintenance in the shared custody model is not limited to the institution of supplementary care, but has a real choice. This paves the way for a more flexible, child-welfare-oriented solution and ensures the ability to act in the best interests of the child. At the same time, the decision highlights the central role of careful procedural arrangements in disputes over child maintenance in the shared custody model.
Current developments and further considerations
It should be noted that the question of the individual reasonableness and suitability of both approaches still requires careful assessment and must always be adapted to the particular family and personal circumstances. The choice between sole decision-making authority and supplementary care is not just a formality, but essential for the legally secure enforcement of the child’s claims and the effective protection of their interests.
With this, the case law lays another cornerstone for procedural approaches in complex maintenance disputes within the true shared custody model and remains pioneering for other Higher Regional Courts as well as for family law practice.
Quelle: Schleswig-Holsteinisches Oberlandesgericht, Beschluss vom 17.01.2024, Az. 8 UF 161/23, veröffentlicht am 26.01.2024, abrufbar unter https://urteile.news/Schleswig-Holsteinisches-Oberlandesgericht8-UF-16123Bei-Geltendmachung-von-Kindesunterhalt-im-Rahmen-des-echten-Wechselmodells-besteht-fuer-Elternteil-Wahlrecht-zwischen-Antrag~N33664
For individual questions and evaluation of legal possibilities regarding maintenance issues in the true shared custody model, the lawyers at MTR Legal, with a nationwide and international focus, are available to advise you.
