In the event of separation and divorce, custody of the children and also the right of access repeatedly give rise to differences of opinion. The parent with custody can be held liable for damages if he or she does not grant the other parent access to the child in the manner intended by the family court. The additional expenses incurred by the parent with visiting rights can be the subject of a claim for damages.
The Federal Court of Justice recently had to decide the following case:
The parties to the dispute were divorced spouses. The family court had awarded custody of the 11-year-old child to the mother, while the father was granted visiting rights. According to the court's ruling, the child was to visit the father at his residence near Berlin. To this end, it was planned that the child should fly from Frankfurt to Berlin with the help of an escort service. The mother had filed an appeal against this arrangement, which was later found to be successful. While the appeal was pending, the mother refused to allow the child to fly to Berlin. The father picked up the child by car from the mother's mother and drove to Berlin with him. He then took legal action to claim compensation for the additional costs incurred by the trips compared to the flight costs. The court ruled in his favor.
According to the judges, the mother with custody had made herself liable for damages by her refusing attitude.
According to the Federal Court, a legal relationship exists between the parents that establishes mutual rights and obligations and that also includes an obligation to take into account the financial interests of the other party. The custodial parent must refrain from anything that would make it difficult for the non-custodial parent to exercise his or her right of access.
If the right of access has been specifically defined by a decision of the family court, a breach of duty already exists if the parent with custody violates this access arrangement. Even significant reasons on the part of the parent with custody do not justify a refusal as long as the corresponding court ruling is in effect. According to the judges, it must be prevented that each parent replaces the existing judicial assessment with his or her own evaluation of the question of the child's well-being. This would undermine the regulatory effect of a judicial decision.
The decision indicates that a court decision is a prerequisite for the claim for damages. It is irrelevant whether this has become legally binding. This can be seen from the fact that in the present case the regulation was even repealed afterwards. The judges at the Federal Court of Justice considered these circumstances to be irrelevant because the mother's appeal against the custody ruling had no suspensive effect. The only option open to the mother in the present case was to apply for a temporary suspension of the enforcement of the contact ruling. If the parent with custody does not make use of this option or if the court does not decide in favor of such a request, the binding nature of the decision remains in effect until the final ruling in the appeal proceedings.
The only exception to this is if court assistance cannot be obtained in time because the specific aspect of the child's best interests could not be taken into account before and has arisen so suddenly that it can no longer be made the subject of an urgent procedure in time. Only in these cases is it possible, under certain circumstances, to deviate from the agreed settlement without court permission for compelling reasons of the child's welfare. Such an exceptional case could arise, for example, if the father wants to pick up the children in his car while intoxicated.
The author considers this decision to be too far-reaching. Practice shows that violations of the contact arrangements are common because, for example, contact cannot take place on a specific weekend. In conclusion, however, it is strongly recommended that the parent with custody notify the other parent of any obstacles in good time so that the parent with contact rights can adjust.
The statements represent initial information that was current for the law applicable in Germany at the time of initial publication. The legal situation may have changed since then. Furthermore, the information provided cannot replace individual advice on a specific matter. Please contact us for this purpose.