When a couple with joint custody separates and one parent then wants to move abroad with their shared child – because of a new relationship, a job offer, or to be closer to their own family – two legitimate interests collide: the wish for a fresh start and the fear of losing the child, or of the contact with them becoming permanently more difficult. Legally, this raises a sober question at the outset: is a parent with joint custody even permitted to emigrate with the child without the other parent’s consent? And what happens if exactly that occurs anyway – secretly, following what was supposedly a holiday, or simply against the other parent’s wishes? This article sets out the German legal position on the right to determine a child’s residence under joint custody and explains how the 1980 Hague Convention on the Civil Aspects of International Child Abduction (HKÜ) applies in such cases.
The Right to Determine Residence as Part of Parental Custody
Where a child lives is not a minor private matter but, legally, a core component of parental custody. Under Section 1631(1) BGB (Bürgerliches Gesetzbuch, the German Civil Code), care of the person includes “in particular the duty and the right to care for, raise, and supervise the child, and to determine their place of residence”. The right to determine residence is therefore not a separate right alongside parental custody but a component of it – whoever holds care of the person’s welfare (Personensorge) also decides, in principle, where the child has their habitual residence.
For married parents, parental custody automatically vests in both of them jointly after the birth. For parents who are not married to each other, Section 1626a BGB governs how joint custody arises: through concurring declarations of custody, through marriage, or through a court order; if none of these applies, the mother initially holds sole parental custody. A separation of the parents does not, in itself, change existing joint custody – it continues until a family court alters it upon application.
Joint Custody After Separation: Who Decides on the Move? (Section 1687 BGB)
Where parents with joint custody live apart, Section 1687(1) BGB governs how decision-making powers are divided between them. The basic rule states: “Where parents who jointly hold parental custody live apart other than merely temporarily, their mutual agreement is required for decisions on matters whose resolution is of substantial significance for the child.” Only for “matters of everyday life” – those that occur frequently and do not have effects on the child’s development that are difficult to reverse – may the parent with whom the child habitually resides decide alone.
According to the prevailing view, a permanent move abroad clearly falls into the first category: a matter of substantial significance. It changes not only the place of residence but, as a rule, also the linguistic environment, the school system, and – above all – the other parent’s practical ability to exercise their right of contact. A parent with joint custody may therefore, in principle, not permanently relocate abroad with the child without the other parent’s consent. If the other parent refuses consent, the matter cannot be resolved without recourse to the family court.
How Strictly Do the Courts Scrutinise a Planned Move Abroad?
How a family court decides in such a dispute was clarified by the Federal Court of Justice (Bundesgerichtshof, BGH) in a widely cited decision of 28 April 2010 (BGH, XII ZB 81/09). In that case, a mother wanted to emigrate to Mexico with the couple’s daughter; the father objected and applied for sole right to determine the child’s residence to be transferred to him. The BGH made clear that a planned emigration does not automatically endanger the child’s welfare – the personal motives of the parent wishing to emigrate are not, on their own, a matter for scrutiny, so long as they do not have an adverse effect on the child. What matters is a comprehensive weighing of all the circumstances of the individual case, taking into account in particular both parents’ suitability to raise the child, the child’s attachments to both parents, continuity and the promotion of the child’s development, and – depending on age and maturity – the child’s own wishes. Contact merely becoming more difficult does not, on its own, establish a presumed risk to the child’s welfare; the appointment of a guardian ad litem (Verfahrensbeistand) and the personal hearing of the child are regularly required in such proceedings.
No Agreement: The Route to the Family Court
If the parents cannot reach agreement, two procedural routes are, in principle, available:
- Section 1628 BGB allows only the specific individual question – here: the planned move, or the right to determine residence for this one decision – to be referred to the family court for decision, without otherwise affecting joint custody.
- Section 1671 BGB allows the family court to transfer parental custody, or a part of it, permanently to one parent alone. The application must be granted if either the other parent consents (subject, for children aged 14 or over, to their own objection) or it is to be expected that transferring custody to the applicant would best serve the child’s welfare.
In both cases, the ultimate standard is the same: the child’s welfare in the individual case, not the question of whose wish to emigrate appears “more justified”. Until a court decision is made or agreement is reached, the status quo remains determinative – a unilateral move during this phase has no legal cover.
If the Move Happens Anyway Without Consent: Wrongful Removal
If a parent nonetheless moves abroad with the child without the required consent or court decision – or retains the child abroad, contrary to what was agreed, following what was meant to be a time-limited stay abroad, such as a holiday visit – this infringes the other parent’s joint custody rights. This is precisely the scenario that the Hague Convention on Child Abduction addresses: under Article 3 HKÜ, the removal or retention is wrongful where it breaches a right of custody that the person concerned held under the law of the state in which the child was habitually resident immediately before the removal or retention, and that right of custody was actually being exercised, whether jointly or alone, or would have been so exercised but for the removal or retention.
The 1980 Hague Convention on Child Abduction (HKÜ)
The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (HKÜ) pursues two objectives under Article 1: to secure the prompt return of children wrongfully removed to, or retained in, a contracting state, and to ensure that rights of custody and access under the law of one contracting state are effectively respected in the other contracting states. Under Article 4 HKÜ, it applies to children who were habitually resident in a contracting state immediately before the breach, and ceases to apply once the child reaches the age of 16. Germany has been a contracting state since 1990; the Convention currently has 103 contracting states worldwide (as at the HCCH status table, 2026).
A point that is central to understanding the Convention, and easily overlooked, is this: the return procedure under the HKÜ is deliberately not a custody proceeding. It does not decide who should care for the child permanently or with whom the child should live – that question remains reserved to the courts of the state in which the child was last habitually resident. The HKÜ merely restores the situation as it stood before the wrongful removal, so that the custody question is decided where the child actually lived beforehand – not wherever the child was unilaterally taken. Under Article 12 HKÜ, the competent court orders the immediate return of the child if less than a year has elapsed between the removal and the receipt of the application; the same applies even after that period, unless it is demonstrated that the child has since settled into their new environment.
The Central Authority in Germany: The Federal Office of Justice
Under Article 6, every contracting state of the HKÜ designates a Central Authority, which under Article 7 is obliged to cooperate – among other things, to locate the child, to bring about an amicable resolution between those involved, to exchange information, and to assist with initiating court return proceedings. In Germany, this task is carried out by the Federal Office of Justice (Bundesamt für Justiz, BfJ), based in Bonn. An application for return may be made informally to the BfJ; depending on whether the child is in Germany or abroad, the BfJ forwards it to the competent foreign Central Authority or assists with the court application in Germany.
Within Germany, return proceedings under the HKÜ are not brought before just any of the more than 600 family courts: Section 12 of the International Family Law Procedure Act (Gesetz zur Aus- und Durchführung bestimmter Rechtsinstrumente auf dem Gebiet des internationalen Familienrechts, IntFamRVG) concentrates jurisdiction in specific courts. The competent court is, in each case, the family court at the seat of a higher regional court (Oberlandesgericht) – 24 courts in total nationwide – so that specialised experience with these time-critical proceedings is concentrated there.
Figures on cross-border child abduction, 2024: According to the Federal Office of Justice, the German Central Authority handled a total of 474 new cases under the HKÜ in 2024 (previous year: 527), comprising 392 return proceedings and 82 access proceedings. Of the return cases, 228 involved removal from Germany abroad and 164 involved removal from abroad to Germany; the most common partner countries were Poland and the United States (31 cases each), Ukraine (27), and Turkey (25). Only cases in which the Central Authority was involved are recorded – no complete overall statistic exists.
Exceptions to the Duty to Return the Child (Article 13 HKÜ)
The duty to return the child is not absolute. The Convention provides, in Articles 13 and 20, narrowly drawn exceptions that can be raised as defences in return proceedings:
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| Provision | Requirement | Practical significance |
|---|---|---|
| Article 13(1)(a) HKÜ | Custody rights were not being exercised at the relevant time; the removal was consented to or subsequently acquiesced in | Cases in which the left-behind parent initially accepted the move |
| Article 13(1)(b) HKÜ | Grave risk of physical or psychological harm, or an otherwise intolerable situation | Most frequently invoked; interpreted narrowly by the courts |
| Article 13(2) HKÜ | The child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of their views | Requires a hearing of the child; the weight given to the child’s wishes depends on the individual case |
| Article 12(2) HKÜ | More than a year has passed since the removal, and the child has settled into the new environment | The mere passage of time is not sufficient; actual integration is decisive |
| Article 20 HKÜ | Return would be incompatible with the fundamental principles of the requested state relating to the protection of human rights | Rarely relevant in practice |
These exceptions are narrowly confined departures from the principle of prompt return. A general assertion that returning would not be “good for the child” is not enough – specific, evidenced grounds for one of the exceptions listed are required.
Relationship with the Brussels IIb Regulation Within the EU
Within the European Union – with the exception of Denmark – the HKÜ is supplemented by Regulation (EU) 2019/1111 (the Brussels IIb Regulation), which has replaced the earlier Brussels IIa Regulation since 1 August 2022. It does not replace the HKÜ’s return mechanism, but builds on it and tightens it in several respects for abduction cases between EU member states:
- Acceleration. Under Article 24 of the Brussels IIb Regulation, the court of first instance is to decide within six weeks of being seised; the same six-week period applies to the appellate court, though there it begins only once all the procedural steps required for the decision have been completed. Enforcement of a return decision is likewise to take place with due expedition.
- Restriction of Article 13(1)(b) HKÜ. Under Article 27(3) of the Brussels IIb Regulation, return between member states may not be refused solely on the ground of an alleged grave risk if it is demonstrated that adequate arrangements have been made to protect the child following their return.
- Protective measures instead of refusing return. Article 27(5) of the Brussels IIb Regulation allows the court, together with the return decision, to order provisional protective measures under Article 15 of the Brussels IIb Regulation – for example, that the child remain with their current carer until the courts of the state of origin decide the matter.
- Hearing the child. The Regulation reinforces the principle that the child must genuinely be given the opportunity to express their views, to the extent appropriate to their age and maturity.
The upshot is that the HKÜ remains the legal basis for an abduction between two EU member states, but it is overlaid by tighter deadlines and a stricter approach to the exceptions. Where the foreign connection lies outside the EU – for example with the United States, Turkey, or Ukraine, the most common partner countries in the German statistics – the HKÜ alone applies, without the Regulation’s additional rules.
An Illustrative Example
The following example is entirely fictional and serves illustrative purposes only; it does not describe any real case or real person. A German couple with a six-year-old daughter separate; both parents retain joint parental custody. The mother wants to move with the daughter to her own family in Canada; the father objects. As no agreement is reached, the mother applies to the family court for the right to determine the child’s residence for this decision to be transferred to her alone under Section 1628 BGB – but, before the court decides, she travels to Canada with the daughter under the pretext of a holiday and does not return. Because the daughter was habitually resident in Germany immediately beforehand and the father was actually exercising his joint custody rights, this constitutes a wrongful removal within the meaning of Article 3 HKÜ. The father can file an application for return with the Federal Office of Justice; since Canada is not an EU member state, the decision is made – without the acceleration rules of the Brussels IIb Regulation, but within the ordinary HKÜ procedure – by a Canadian court at the child’s actual location. The mere fact that the daughter has initially settled in in Canada does not, on its own, establish an exception to the duty to return, so long as the application is filed within a year and none of the narrow exceptions under Article 13 HKÜ applies.
When Is Legal Advice Worthwhile?
Legal advice on this topic is worthwhile in several quite different situations: when planning a move abroad, to clarify in advance whether the other parent’s consent is required and how an application under Section 1628 or Section 1671 BGB can be prepared; in the acute situation of a removal or retention that has already taken place, where swift action can be decisive given the tight deadlines under the HKÜ and the Brussels IIb Regulation; and on the part of a parent facing a return application who wants to have it assessed whether one of the narrowly drawn exceptions under Article 13 or Article 20 HKÜ genuinely applies.
Fiala law firm has published extensively on international family law and helps clients safeguard their rights where a child’s move abroad is planned or has already taken place – from clarifying the right to determine residence, through representation in family court proceedings, to support with return proceedings under the Hague Convention on Child Abduction. In the event of a custody dispute with a foreign connection, contact the firm at an early stage to discuss your individual situation in an initial consultation.
