Custody Arrangements Do Not Imply No-Contact Orders

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Important Decision of the German Federal Court of Justice (BGH) on Custody Rights

Custody rights often become a contentious issue for separated parents. The German Federal Court of Justice (BGH) recently made a crucial decision regarding custody. In a ruling on February 21, 2024, the BGH emphasized that existing custody arrangements do not automatically imply that any contact between the child and the parent with custody rights must be avoided during other times (Case No.: XII ZB 401/23).

Even if the parents are separated, the child generally has a right to maintain contact with both parents. If the child lives with one parent, the other parent has the right to visitation. To ensure the child’s welfare, the parents are urged to agree on appropriate custody arrangements, according to MTR Legal Lawyers, who also advise on family law.

Father Extends Custody Rights

Although visitation should occur regularly, there are no uniform legal regulations for frequency and duration. It is often agreed that the child will spend every other weekend with the parent who has visitation rights. Other arrangements can also be made.

Even if there are fixed custody arrangements, they do not exclude contact between the child and the parent beyond the agreed times. The BGH made this clear in its February 21, 2024 ruling.

In the underlying case, the parents had separated and had fundamentally agreed on the custody of their two children: the children lived with their mother, while the father had custody rights on weekends and holidays. However, the father extended his custody beyond the agreed times. It repeatedly happened that he returned the children to the mother later than agreed or picked them up from school on non-scheduled days to spend a few hours with them.

Contact Beyond Custody Arrangements

The mother disagreed with this and took legal action against the father. The responsible family court imposed a fine on the father or, alternatively, imprisonment.

In turn, the father appealed to the Frankfurt Higher Regional Court (OLG). He argued that a custody arrangement does not exclude further contact unless explicitly agreed. His appeal was largely successful at the OLG. The case finally went to the German Federal Court of Justice (BGH), which affirmed the OLG Frankfurt’s position. The OLG had stated that the agreed custody arrangement did not contain a sufficiently specific prohibition requiring the father to refrain from any contact outside the agreed times.

The BGH noted that a judicial custody arrangement, which positively regulates visitation by assigning times, does not automatically imply a no-contact order for other periods. Violating a custody arrangement by contacting the child outside the agreed times should only be sanctioned if, in addition to assigning times, an explicit no-contact provision is included in the custody agreement, clarified the Karlsruhe judges.

Custody Arrangement Should Ensure Contact

A custody arrangement should regularly ensure contact between the child and the parent with custody rights. Additionally, it is not intended to exclude contact for other times unless such a ban is explicitly agreed upon, the BGH elaborated. A regulation that sets a fixed rhythm for visitation does not simultaneously exclude other times of contact between the child and the parent.

The custody agreement in the underlying case did not contain a sufficiently specific requirement for the father with custody rights to avoid contact with his children outside the assigned times, the BGH decided. The notice required under Section 89, Paragraph 2 of the Family Proceedings Act (FamFG), regarding the consequences of violating the custody arrangement, does not extend to such a no-contact requirement and therefore cannot achieve its intended deterrent effect, stated the BGH.

After much debate over whether positive custody arrangements also include a no-contact provision for other times, the BGH has now provided clarity on this critical point.

MTR Legal Lawyers offer advice on custody rights and other important family law topics.

Feel free to contact us.






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