BGH: Child welfare and will decisive for care by parents
A separated father can hardly enforce half the care of their child in constant disputes with his ex. Although the law provides for such an “exchange model” on an equal footing, it says in a decision published on Monday, February 27, 2017 (file number: XII ZB 601/15) of the Federal Court of Justice (BGH) in Karlsruhe. The family courts should only order this if it is in the best interests of the child; this in turn presupposes the ability of the parents to exchange and work together.
This means that a father from Franconia can still hope to be able to look after his 14-year-old son with his divorced wife on a weekly basis. The couple had divorced after almost 25 years of marriage and have been in a constant dispute since then, which is also the subject of legal battles.
However, the parents have joint custody and were initially able to agree on a handling arrangement in January 2013. After that, the son mostly stays with the mother. The father should eat the son every two weeks at the weekend. Handling during the holidays was also regulated.
But the contact with his son was ultimately too little for the father. He asked for a handling arrangement based on the so-called parity change model. His son should always come to him every week.
The divorced wife refused this and justified it among other things with the recurring disputes with her ex-husband. The desired change model requires that you can talk to each other. Here the relationship is broken. There is insufficient communication and cooperation skills.
The district court of Schwabach and the Oberlandesgericht (Higher Regional Court) of Nuremberg rejected the father's application for the court order of the change model. The right of access does not provide for an arrangement of the parity change model.
However, the BGH contradicted this in its decision of February 1, 2017. The switch model is not excluded by law. The legal regulation is based on the so-called residence model, in which one parent predominantly carries out childcare. However, this is not a legal model that excludes other care models.
Rather, it is crucial which childcare model corresponds to the child's best interests. If the relationship between the parents is "significantly conflict-charged", a judicially ordered parity change model "is generally not in the child's well-understood interest", said the BGH. Parity support should not be ordered so that the parents only learn to cooperate with each other again.
However, the parity change model can be ordered by law if this corresponds not only to the child's best interests, but also to the child's will. The older the child, the more likely the child's will to apply, according to the BGH.
The OLG now has to make a new decision about the specific case. The child must listen to this personally and determine which care model corresponds to the child's best interests and is suitable for the son.
The chosen care model also has an impact on maintenance. While with the residence model the parent receives child support with whom the child mostly lives, the situation is somewhat different with the switch model. According to a BGH decision of November 5, 2014, both parents are obliged to maintain (Az .: XII ZB 599/13, JurAgentur notification from December 17, 2014). If both parents earn exactly the same, then neither has to pay the other child support. If, on the other hand, a parent has a higher income, he has to compensate for this by paying the ex-partner cash support. fle / mwo