Custody after separation in Germany: who decides what

Last checked against the official sources: 29 August 2026

Separation in Germany does not end joint custody automatically. It continues unchanged until a court orders otherwise on an application. More importantly, the law separates three things that everyone runs together: who decides the big questions, who decides daily life, and who sees the child — each with its own provision and its own rule.

A fourteen-year-old’s objection: what it stops and what it does not

This is the finest point in Section 1671 and the most misunderstood. The text sets out two routes for granting an application to transfer custody, and it attaches the child’s objection to only one of them:

• Route one — consent: the application must be granted where the other parent consents, “unless the child has completed the 14th year and objects to the transfer”. A teenager’s objection defeats this route entirely.
• Route two — the child’s welfare: the application must equally be granted where ending joint custody and transferring it to the applicant is expected to best correspond to the child’s welfare. This route requires nobody’s consent and is not stopped by an objection.

A fourteen-year-old therefore holds a veto over the agreed route, not a veto over the outcome. If they object, the door does not close; the matter simply moves from a procedure resting on the parents’ agreement to a judicial examination of the child’s welfare — in which the child’s view is heard as one element of that examination rather than as a final decision.

For unmarried parents there is a rule that comes before all of this: Section 1626a provides that custody is joint where the parents declare they wish to take it on together, or marry, or the court transfers it to them — and otherwise the mother has custody. Even so, the text helps the father: where the other parent puts forward no grounds capable of standing against the transfer and none are otherwise apparent, joint custody is presumed not to contradict the child’s welfare.

Joint custody in practice: who decides what

Joint custody after separation does not mean consulting the other parent about everything. Section 1687 lays down a clear three-layer division:

Matters of substantial significance — these require mutual agreement between the parents. They are the decisions that shape the course of the child’s life.

Matters of daily life — decided alone by the parent with whom the child ordinarily lives, whether by the other’s consent or by court decision. The text gives an elegantly practical definition: “those that occur frequently and have no hard-to-reverse effects on the child’s development”. The test is not how important a matter feels but how often it recurs and how reversible its effect is.

Matters of actual care — while the child is staying with the other parent by consent or by court decision, that parent decides alone on matters of actual care for the whole of that time. A parent during contact days is not a powerless host.

The family court may restrict or exclude these powers where necessary for the child’s welfare — the legal remedy where the everyday power is abused.

Contact: the child’s right before it is the parent’s

Section 1684 opens with a sentence that inverts the common assumption: “The child has the right to contact with each parent; each parent is obliged and entitled to have contact with the child.” Contact is a duty on the parent before it is a privilege, and it belongs at root to the child rather than being a reward to be granted or withheld.

Then comes the duty of proper conduct, the most frequently broken rule in practice: parents must refrain from anything that impairs the child’s relationship with the other parent or makes upbringing harder — and the same applies where the child is in someone else’s care.

The statute provides a graduated remedy for breaches:

• The court may determine the extent of contact and regulate its exercise, including as against third parties.
• It may bind the parties by orders to perform the duty of proper conduct.
• Where the duty is persistently or repeatedly seriously breached, it may order a contact guardianship — which includes the right to demand the child be handed over for contact and to determine where they stay for its duration. The order must be time-limited.
• It may restrict or exclude contact where necessary for the child’s welfare — but a restriction or exclusion for a longer time or permanently may issue only where the child’s welfare would otherwise be endangered.
• It may in particular require the presence of a cooperating third party — which may be a youth-welfare body or an association.

What to do after separating

1. First establish who actually holds custodyFor married parents it stays joint. For unmarried parents it is joint only by declaration, by marriage or by court order — otherwise the mother holds it.
2. Do not assume separation changed anythingJoint custody continues until the court decides on an application. A situation on the ground creates no right.
3. Separate what needs agreement from what does notMatters of substantial significance need mutual agreement; what recurs frequently with reversible effects is for the parent the child lives with.
4. If your child has turned 14, know the limits of their objectionIt defeats the consent route alone; the welfare route remains open to the court.
5. Treat contact as a duty, not a bargaining chipIt is the child’s right, and each parent is both obliged and entitled; withholding it is not a neutral stance.
6. Document every repeated obstructionA persistent or repeated serious breach of the duty of proper conduct is what opens the door to a contact guardianship — and the court needs facts, not impressions.

Frequently asked questions

Does joint custody end on separation?

No. It continues until the family court transfers it to one parent on an application under Section 1671.

When must an application for sole custody be granted?

In two cases: where the other parent consents — unless the child has completed 14 and objects — or where the transfer is expected to best correspond to the child’s welfare.

Can my fourteen-year-old prevent a transfer of custody?

Their objection defeats the consent route only. If the court finds the transfer best corresponds to their welfare, the second route remains open.

Who decides everyday matters?

The parent with whom the child ordinarily lives, by the other’s consent or by court decision. Everyday matters are those that occur frequently and have no hard-to-reverse effects on the child’s development.

And who decides during contact days?

While the child is staying with the other parent by consent or by court decision, that parent decides alone on matters of actual care for that whole time.

Is contact the parent’s right or the child’s?

The statute provides that the child has the right to contact with each parent, and that each parent is both obliged and entitled to have contact.

What if the other parent repeatedly blocks contact?

Where the duty to refrain from impairing the child’s relationship with the other parent is persistently or repeatedly seriously breached, the court may order a contact guardianship, including the right to demand the child be handed over and to determine where they stay during contact — and the order must be time-limited.