Concept and Legal Classification of Determination of Place of Residence
The term determination of place of residence refers in German law to the authority to determine a person’s usual place of residence. It holds central importance, especially in family law, particularly in connection with parental custody of minor children, but also in guardianship law and in matters involving deprivation of liberty. The determination of residence is regularly closely linked to interventions in the personal rights and the fundamental right to personal freedom (Art. 2 para. 2 sentence 2 of the Basic Law).
Right to Determine Residence
The so-called Right to Determine Residence is an aspect of personal care as defined in Section 1631 paragraph 1 of the German Civil Code (BGB). It encompasses the legal authority to decide where the child or—in the context of guardianship law—the protected adult actually and legally resides.
Determination of Residence of Minors
The right to determine the place of residence of minor children is generally exercised jointly by the custodial parents (§ 1627 BGB). It includes the right to determine the permanent and temporary residence and living location, for example with regard to the center of life, changes between parental households (relocation), vacations, and placing children in homes or foster families.
Disputes Regarding the Exercise of the Right to Determine Residence
If a dispute arises between jointly entitled parents over the determination of residence, § 1628 BGB provides that the family court can assign decision-making authority on a matter to one parent alone. In individual cases, the family court can transfer the right to determine residence pursuant to § 1671 para. 1 BGB to one parent alone if this is in the best interest of the child. This is of considerable practical significance in cases of separation or disagreement over relocation.
Determination of Residence in Guardianship Law
In guardianship law (§§ 1906 et seq. BGB), the determination of residence plays an important role for adults who, due to a mental illness or a mental or emotional disability, are unable to manage their own affairs, wholly or partially. If a guardian is appointed, the court can grant the guardian the right to determine residence. This permits, for example, decisions regarding a change of residence, relocation to a nursing home, or, if necessary, the prevention of a specific stay.
Relationship to Other Legal Terms
The right to determine residence is part of custody and must be distinguished from general power of representation or management of property.
Difference from Parental Custody
While parental custody under § 1626 para. 1 BGB includes personal and property care for the child as well as representation, the right to determine residence focuses on the practical choice of place of residence and thereby a fundamental aspect of the exercise of parental care.
Distinction from Access and Visitation Rights
Das Right of Access (§ 1684 BGB) refers to the right of the child and the parents to have mutual contact. In contrast, the right to determine residence establishes with whom the child has their main place of residence. Decisions on day-to-day stays, short-term changes of location, or vacations fall under the right of access and not necessarily under the right to determine residence.
Legal Significance and Practical Relevance of Determining Place of Residence
Child’s Welfare and Judicial Standards for Decision-Making
In judicial decisions regarding the transfer of the right to determine residence, the child’s welfare (§ 1697a BGB) is the focal point. Important aspects include the child’s relationships, opportunities for development, continuity of upbringing, the parenting skills of the parents, the child’s wishes, and family ties. The decision for a permanent relocation of the child’s usual place of residence, especially abroad, is subject to strict requirements for the welfare of the child.
Court Procedure
Matters involving the determination of residence are decided by the family court in independent proceedings (§ 151 No. 1 FamFG). The court can wholly or partially withdraw and transfer the right to determine residence from one parent to the other, if and to the extent necessary for the welfare of the child (§ 1671 BGB). In practice, expert opinions are often used to determine the best interests of the child.
Compulsory Measures and Deprivation of Liberty
The determination of residence may, under certain circumstances, include measures involving elements of deprivation of liberty, for example when placing a child or a protected adult in an institution. Such measures are subject to special requirements (§ 1631b BGB for minors or §§ 1906 et seq. BGB for protected adults) and generally require judicial authorization to justify infringements of fundamental rights.
Right to Determine Residence in an International Context
In cross-border situations (e.g., moving abroad), international regulations such as the Hague Convention on the Civil Aspects of International Child Abduction (HCCH) and European regulations apply. A change of the usual place of residence abroad may only occur under German and international law with the consent of both legal guardians or with court approval.
International Family Law
If there is international child abduction resulting from unauthorized determination of residence, the affected parent can seek the return of the child according to the relevant international regulations. The recognition and enforcement of decisions regarding the right to determine residence are governed in the EU in particular by the Brussels IIb Regulation.
Summary
Determination of residence is a central instrument of German family and guardianship law. It is decisive in determining where a person—especially a minor child or a protected adult—may usually reside. Disputes are primarily decided in light of the best interests of the child, with the court able to transfer the right of residence determination to one parent or a guardian in individual cases. In the international context, extensive regulations for the protection of affected persons and parental rights must be observed. Determination of residence thus stands at the intersection of self-determination, the state’s duty of protection, and individual freedoms, and is of great practical importance in family and guardianship law.
Frequently Asked Questions
Who decides in the case of a dispute over the right to determine residence?
In the case of a dispute, family courts in Germany generally decide on the right to determine residence as part of parental custody under § 1627 et seq. BGB (German Civil Code). If the parents cannot agree on the usual place of residence of the child—for example, after separation or divorce—either parent may apply for transfer of the right to determine residence. The court always examines which aspect of the child’s welfare is decisive. The youth welfare office is usually heard on this matter, and the court conducts a child hearing (§ 159 FamFG). In addition, expert opinions are often obtained in order to thoroughly assess the child’s attachment to the parents, school and social integration, and other relevant factors. Based on § 1671 BGB, the court may assign the right to determine residence in whole or in part to one parent or leave it to be exercised jointly, provided this does not conflict with the child’s welfare.
Can the right to determine residence be transferred to third parties?
In exceptional cases, it is possible for the right to determine residence to be transferred to a person other than the parents, such as grandparents or foster parents. This presupposes that there are serious reasons against the parents determining residence and that the transfer is clearly in the child’s best interest (§ 1688 BGB). The decision is made by the family court upon application after both parents, the affected third party, and, if necessary, the youth welfare office have been heard. This is especially relevant in situations where parents are permanently unable to exercise the right, for example due to illness, death, or a court-ordered withdrawal of parental custody.
What is meant by a provisional order in the context of the right to determine residence?
A provisional order (§§ 49 et seq. FamFG) is a temporary court ruling that can be issued to regulate a child’s residence in urgent situations—for example, when there is suspicion that a parent may take the child abroad or to an unknown location. The family court can issue a provisional order upon application or ex officio, provided both grounds for the order (urgency) and entitlement (prospects of success) are credibly demonstrated. The provisional order applies until a final decision is made in the main proceedings, during which the court also reviews the best interests of the child and may conduct further investigations through hearings and expert opinions.
What impact does the right to determine residence have on visitation rights?
The right to determine residence refers solely to which parent or at which place a minor child has their usual residence. The right of access, which is generally granted to both parents under § 1684 BGB, remains unaffected by this. Even if one parent has the sole right to determine residence, the other parent is still allowed contact with the child unless the court determines that such contact would harm the child’s welfare and therefore restricts or excludes it. However, the right to determine residence can have a practical impact on the arrangement of visitation, for example in the case of distant residences or a planned relocation to another country.
Are there differences between sole and joint rights to determine residence?
Yes, these differences are clearly defined by law: If both parents have joint rights to determine residence (joint parental custody), they must agree collaboratively on the child’s place of residence. If no agreement can be reached, disputes are resolved through family court application proceedings. If one parent has sole right to determine residence—either by court order or as the result of a custody arrangement—that parent can decide independently on the residence; the other parent must be informed but no longer has decision-making authority. In accordance with § 1671 BGB, sole right is mainly granted when cooperation between parents is not possible and it is necessary for the child’s welfare.
What are the legal consequences of violations against the right to determine residence?
If a parent violates the existing right to determine residence—for example, by taking the child to another location against a court order or refusing the other parent contact—severe legal consequences may follow. These can include civil law measures such as fines, detention (§ 89 FamFG) or the compulsory transfer of the child pursuant to § 88 FamFG. In cases of cross-border child abduction, additional international regulations apply (especially the Hague Convention on the Civil Aspects of International Child Abduction—HCCH). In particularly serious cases, the court may even order the exclusion of contact, modification of the right to determine residence, or, as a last resort, withdrawal of parental custody.
What role does the youth welfare office play in matters of residence determination?
The youth welfare office acts as a neutral advisory and supportive body in proceedings regarding the right to determine residence. It is regularly involved by the family court and provides an expert statement on the child’s welfare under § 50 SGB VIII. The youth welfare office advises and supports parents and children even prior to formal applications and is particularly available in situations involving separation or divorce. During court proceedings, it is involved in hearings and can offer support measures, such as developing a visitation plan or providing mediation services. In highly critical cases where a lasting endangerment of the child’s welfare is threatened, the youth welfare office is even obliged to apply itself to the family court for withdrawal of custody.
