German Law/Obtaining Right to Leave Germany with Children
QUESTION: Hi Andreas:
My daughter (a US citizen) has been living in Germany for 6 months with her husband (born in US, but also has a German passport) and 3 children (all with US/German citizenship). They had originally been living in the US and were married here and all of the children were born in US. Her husband left for Germany to find a job. He had told her he found work and asked that they move to Germany, which they did. He is not employed, they are living on German government support and he has become abusive. He has also taken the passports of the children.
She now wants to return to the US with the children and he has told her that he will not allow the children to go. My question is what resources are available to her and what is the best way to approach this situation?
Your advice would be greatly appreciated.
ANSWER: Hello Sara,
your daughter basically has two options:
(1) She can petition the Family Court in Germany to allow her to move to the US with the children. She would argue that the children are better off in the US, that there is more family support there, that the children have been fully integrated there, and so on.
If the Family Court in Germany finds that your daughter has a good case, it will allow her to make that decision. The husband's consent won't be necessary anymore.
For more on child custody law in Germany: http://andreasmoser.wordpress.com/2012/09/19/10-faq-child-custody-law-germany/
(2) She can leave Germany without her husband's consent. Obviously, she will need to get (new) US passports for the kids.
The only danger in this case is that the husband could try to petition for the return of the children under the Hague Child Abduction Convention. But he would need to do so in the US. Depending on the specific circumsances, your daughter could maybe argue that she had not yet established residence in Germany (that depends for example on the living and school situation). The abuse is usually not enough of an argument, despite Art. 13 of the Hague Convention, because your daughter could also seek legal protection against her husband in Germany. There is an anti-domestic violence law in Germany.
For more on the Hague Child Abduction Convention: http://andreasmoser.wordpress.com/2009/08/07/10-faq-on-international-child-abduc
Because my ultimate advice would depend on many details of the actual situation as well as what kind of support network your daughter could hope for in the US, I would be happy to speak to you and/or your daughter over the phone and discuss all the options, dangers, consequences, strategies in far more detail than I can here. Please feel free to contact me directly at firstname.lastname@example.org, but I do unfortunately have to charge for such a consultation. My fee is 150 EUR and I will take a couple of hours for our conversation and I'll be happy to schedule it at a time that is convenient for both of you according to your respective time zones.
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QUESTION: Thank you so much, Andreas, for your quick response!
As a US citizen, does she need a lawyer to petition in family court and how long does this process take?
I will also contact you privately after I speak with my daughter.
Thank you again so very much!
She does not necessarily need a lawyer, but the whole process will be in German of course. I should also note that your daughter might qualify for German legal aid which will pay her attorney. Se does not need to be a German citizen for that.
The duration is one of the drawbacks, because these proceedings can take months. Many months.