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German Law/Passports with Sole Custody

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Question
Hello, Mr. Moser!
About five years ago, I had a child with a German woman who, at the time, was residing in the US with dual citizenship, and she moved back to Germany before the child was born. My name is on the birth certificate. She recently got married to a German man, if that affects anything.
In a few weeks, she and the child will be visiting the states. However, from my research online, (germany.info and several others), in order for her to receive a passport for the child, they require a signature/informed consent from both parents. I received no such notice, yet I have been informed her child already has the passport and tourist visa.
Is she able to use just her own signature to receive a passport for the child under sole custody, and if not, is it likely she legally adopted the child to her husband?
I wish to know what kind of legal rights/obligations I still hold. Asking her myself is out of the question, as she actively avoids contact and is not trustworthy.

Hopefully you can give me some reliable input on this situation! Thank you for your time.

Answer
Hello Allen,

1) I would find it highly doubtful that anyone adopted your child if you are registered as the father at least somewhere. As long as there is a father, another man cannot step into that legal role without a court proceeding that would take away your parental rights.

2) Custody is the right to legally represent the child. As such, sole custody is sufficient to apply for passports or any other documents on behalf of the child.
In practice, the issuing of passports is sometimes a problem because consular officials don't always know if the applicant has sole custody or not (unless there has been a court order).

3) Even as a father without custody rights, you do of course have the right to contact and visitation ( 1684 I BGB in Germany). Not having used that right for a few years does not mean that you lost it. If you wish to pursue this right, keep in mind that sole jurisdiction lies with the court of the child's habitual residence in Germany. A short trip or a vacation in the US does not establish residence.

4) The downside of the parental relationship is that you do have an obligation to pay child support. If you have never been contacted about this issue, you needn't worry about backpay or arrears, but the mother may choose to purse her claims for child support at any time in the future.

Andreas Moser
www.andreasmoser.wordpress.com

German Law

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Andreas Moser

Expertise

Extensive experience in international family law, especially international child abductions and child custody cases. All other areas of German law as well: constitutional law, criminal law, business and contract law, immigration law, inheritance law, and so on.

Experience

Lawyer in Germany from 2002 to 2009. Lawyer for US Army JAG Corps before. Bar-certified specialisation in family law and in administrative law. Articles and lectures about international and domestic family law.

Publications
www.andreasmoser.wordpress.com

Education/Credentials
2000 Law Degree from University of Regensburg, Germany 2002 admitted to the bar (until 2009) 2013 MA Philosophy at the Open University, UK

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