German Law/Divorce & child custody
QUESTION: Hi Andreas,
I am Indonesian married to German husband 3.5 years ago. We have a 2 years old daughter and currently pregnant with the 2nd one which due in Aug. Recently decided to file divorce from my husband & need your advise on some matters.
1. Understand that there is one year separation period before the court can grant the divorce. If my husband refuses to move out, can I get a request from the court for him to do so as it will be very inconvenience for me (& daughter) to move out instead. FYI, I am a stay home mum.
2. Next option, can I request for the court to allow me & my daughter to go to my parents house (in Indonesia) during separation period as I would also very much needing family support during & after delivery of my baby.
3. Once separation period is done, I intend to file for sole custody of my kids as I plan to move with my parents afterwards so joint custody seems to be impossible. Any idea what would be my chance in this situation?
Main reasons for my divorce are some violence done by him & his father (while I am pregnant). Both happened on separate occasion.
Would like to thanks in advance for taking your time in providing input. It is really helpfull for those (including me) first timer dealing with law related issues.
ANSWER: Dear Yoel,
obviously, option 1 & 2 contradict each other, so you definitely cannot file for both.
1. Yes, you can file for a physical separation and the court will then decide who gets to stay in the apartment and who has to move out. Usually, the one who can afford it financially will be asked to move out. Also, if you are taking care of your child at home, you have a higher chance of staying at the current apartment.
2. and 3. I don't see why the court would allow that, as it would mean the separation between the child and the father. "Family support" is not a very convincing argument because, as you know, there is plenty of support in Germany and you won't be left to your own devices.
Also, children are not property that you can simply take away from the other parent just because it's more convenient for you to live in Indonesia. You have both made a decision to raise the children in Germany and the divorce does not remove this parental agreement.
However, Indonesia is not a party to the Hague Child abduction Convention. This means that if you simply leave with your child, your husband cannot really do much to force you to return your daughter to Germany.
You have to keep in mind though that it is a crime in Germany which may damage your chances of ever returning to Germany.
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QUESTION: Thanks for the quick response, I appreciate that.
I decided for divorce because I have enough of violence from him. He hit & pushed me even when I was pregnant with 1st child (several times). And his father recently hit, drag & pushed me when I am in my 2nd pregnancy, he knew but siding his father. This is the moment which make me lost hope that he will change (I had enough). I have no family in Germany and it will be challenging for me to raise 2 kids (a newborn + toddler by then). And the kids will have a better living with my family.
Even in this situation, do I still have to stay in Germany alone with the kids during separation or after divorce?
Btw, if I will leave with the kids, I will do it legally as I want to live with a peace of mind, not with fear anymore.
Once again, thanks for your input.
You have to differentiate between the husband-spouse relation and the children-father relation:
1) It's obvious that you should get a divorce. There is no point in continuing the marriage.
2) But your ex-husband will still be the father of your two children. He has a right to have contact with them and they have a right to have contact with him (§ 1684 I BGB). You cannot treat the children as property that you can simply take away from the other parent. If you try to do that, you may even lose custody completely because you would come across as selfish and heartless.
Of course it will be challenging, but you (both) decided to have a second child despite a bad marriage. This is not the children's fault and they should not be deprived of one of their parents. Comfort or a better life somewhere else is no excuse for a child abduction.
Obviously, all of this is a different matter if your husband gives you permission to move to Indonesia with your child(ren).