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German Law/Aufenthaltsbestimmungsrecht

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QUESTION: Dear Mr Moser,

I am a permanent resident in Germany but I come from Canada. My ex-husband comes from Israel and we used to live together in Berlin. We are now divorced and share custody of our 4 year old son. Since last December, the father moved back to Israel to work and I take care of our son alone in Berlin. He comes to visit from time to time and pays the minimum amount of child support.

I feel trapped in this situation. I am happy to have our son full time but with no family around, it is not always easy. I am considering my options at the moment and I am thinking that I might want to go somewhere else or even go back home to Canada. I discussed this with my ex-husband and he didn't want to hear about it, saying that our son's residence has to be in Berlin. So basically my question is: what kind of rights do I have? He has left the country but I have to stay here in case he wants to come back?

I have read about Aufenthaltsbestimmungsrecht and I was wondering if this could be an option in my case. I will always have my son's happiness as a priority but I think it is unfair that the father can just go as he pleases, but I have no options.

I am really looking forward to hearing from you and I thank you in advance for your time.

ANSWER: Dear Mimi,

the only legal issue that stops you from simply moving is the Hague International Child Abduction Convention. For that convention to apply, the father would need to actively exercise the joint custody. Courts have ruled that frequent visits are sufficient for that if he is also otherwise involved in your son's life (phone calls, information/decision about schooling, etc).

I would recommend to err on the side of caution and consider the Hague Convention to be applicable, although your case is a borderline case.

Hence, the only completely legal way is indeed to go to the Family Court in Berlin and ask to receive the "Aufenthaltbestimmungsrecht", i.e. the right to determine the residence of your son, without throwing shared custody out of the window altogether.
You would need to show a specific plan of where you want to go and what you want to do there and how it would improve your situation. Because the father does not live in Germany, the court will be more open to your request than if he did. However, one issue to be considered is that flights from Israel to Canada are way more expensive than flights from Israel to Germany, meaning that your son may have less contact with the father. This is the main concern in cases of "Aufenthaltsbestimmungsrecht". If you see that the judge is not completely convinced by your request, you may therefore have to offer that you will fly to Israel with your son once or twice a year or that you can meet in Germany (or any other place that is financially feasible).
But generally, if you have a good plan and don't just file for the "Aufenthaltsbestimmungsrecht" arguing that you want to move "somewhere, sometime", you should have good chances.

All the best and good luck!

Andreas Moser
www.andreasmoser.blog

[an error occurred while processing this directive]---------- FOLLOW-UP ----------

QUESTION: Dear Mr Moser,

Thank you so much for your very quick reply. The father is now saying that he plans to return to Germany next year, so I am thinking that I might not have good chances. But my follow up question is:

If I try to get the Aufenthaltsbestimmungsrecht but my request is denied, does it automatically mean that the father will get it, or are we simply going to keep the status quo that we have now?

Thanks again for your help, I really appreciate it.

Answer
Hello Mimi,

that information does indeed make the case a bit more complicated, although the father would also need to show that he has a specific plan of returning to Germany, not just a vague idea for some day.

If the father comes to live in Germany to spend more time with your son, it would look a bit bad if you are trying to move to another continent exactly at the same time. However, if you both will agree that your son will live in Germany, the father may agree to you spending a few months of the year in Canada with your son, knowing that you will return. (If not, he could invoke the Hague Child Abduction Convention.) That might be a neat compromise if it's financially feasible.

But in a few years at the latest, your son will have to start school, and that would kind of determine the country where he is going to stay for the foreseeable future anyway.

What the court will do will depend on whether the father will request the Aufenthaltsbestimmungsrecht for himself or not. If he does, it becomes a more antagonistic case, with a higher chance of one of you winning. However, the court is completely free and can also deny both your requests and leave the situation as is, i.e. that you need to come to an agreement.

If the father really comes to Germany, then at least you may not have the same childcare problems as now as you can try to get the father involved in everyday-care, giving you a bit more free time.

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Thank you very much for your kind comment!
I will use this opportunity to point out that I do accept donations via AllExperts/Paypal and that I have a wishlist of books: https://andreasmoser.wordpress.com/contact/books-my-wishlist   ;-)

Andreas Moser

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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