Overview of current case law on the sole right of decision in matters of child support in the genuine alternating residence model
Family law has undergone a steady evolution in recent years, particularly concerning the arrangement of care models for minor children after the parents’ separation. An important area of tension arises in connection with the so-called genuine alternating residence model (Wechselmodell), in which both parents share childcare responsibilities in roughly equal proportions. Judicial clarification of which parent is authorized to assert the child’s right to support in this context is of central importance—not infrequently, far-reaching economic interests of both parents as well as of the child are at stake.
Against this background, a decision by the District Court (Amtsgericht) Hersbruck dated April 8, 2021 (Ref.: 8 F 783/20) is of particular relevance. The court had to determine whether, in cases of the full alternating residence model, one parent—contrary to the statutory norm—can be granted the sole authority to assert support claims.
Legal classification of the sole decision-making right in the context of the alternating residence model
Statutory basis and usual practice
According to German family law, major matters concerning the child are generally to be decided jointly by both custodial parents. In the area of claiming child support, this means that the child’s claims to cash maintenance are, as a rule, to be asserted either jointly or in the name and with the consent of both parents. The transfer of decision-making rights to only one parent is possible as an exception under § 1628 BGB if there is a disagreement between the parents and the child’s best interests require such an arrangement.
Alternating residence model – Specifics in parental custody
The alternating residence model is characterized by the child being cared for by both parents to a similar extent. In contrast to the sole residence model, where one parent primarily assumes responsibility, both parents are equally involved in the child’s daily life. In terms of child support matters, the practical question arises as to whether either parent can assert support claims on behalf of the child under sole decision-making authority without the involvement of the other parent.
Rationale and implications of the Hersbruck District Court decision
The District Court Hersbruck made it clear in its decision that transferring the sole authority to assert child support claims to one parent in the genuine alternating residence model is not consistent with statutory provisions. This judicial assessment is based on a nuanced interpretation of § 1628 BGB, taking into account the specific character of the alternating residence model.
Reasoning for the rejecting stance
The court explained that child support in the genuine alternating residence model is to be classified as a matter of significant importance. The ruling emphasizes that the legislator—given the equal responsibility of both parents—does not provide grounds for granting one parent sole authority to enforce support claims. Doing so would contradict the principle of joint parental custody and result in one parent being able to decide on existential financial matters without the involvement of the other.
Furthermore, the court pointed to the risk of structural disadvantage—in particular, when disagreements regarding support claims arise in the context of the alternating residence model. A unilateral decision-making power could in such cases mean that the legitimate interests of the other parent are not taken into account.
Assessment of exceptions and other constellations
The court also found no grounds for a different assessment in exceptional cases, provided the child’s welfare is not at risk and both parents are constructively participating in their parental responsibilities. Only in situations where the child’s welfare is concretely endangered by the conduct of one parent—for example, through persistent refusal to enforce justified support claims—could a different standard of review apply. This was not the case in the present matter.
Significant implications for practice and further considerations
The present decision makes clear that, in the genuine alternating residence model, the equal rights of both parents also take absolute precedence in the context of child support. For both judicial and extrajudicial practice, this means that unilateral actions in enforcing support claims are not permissible. Disputes about the enforcement of child support must therefore be resolved within the framework of joint parental custody or, if necessary, by court order.
The significance of this decision is particularly relevant for wealthy individuals and entrepreneurs, whose family law disputes increasingly intersect with complex financial and tax law issues. Especially in cases with cross-border elements or involving differently structured assets, additional questions may arise, such as in the context of international private law or the enforcement of support orders.
Conclusion
Case law on the structuring of the alternating residence model and the resulting child support issues continues to develop. Those affected, who are faced with comparable decisions or wish to better understand their rights and obligations, are well advised to carefully review the latest supreme court rulings as well as the individual circumstances.
For more in-depth inheritance, corporate, or tax law questions in connection with support claims and the structuring of the alternating residence model, the lawyers at MTR Legal are happy to offer you their advice.
