Frequently asked questions (FAQ)

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The custody relationship is initially governed by the national law of the country in which the child was born. In many countries, for example, joint custody exists regardless of marriage as long as paternity is recognised. You can find out which national law applies in EU countries here:

If you require further information or would like to find out about the national law of a country outside the EU, please contact us. 

The custody relationship can change if a corresponding court order is issued.

However, custody can also change if you move to a different country! This is based on the fact that the custody relationship is governed by the law of the state of the child's habitual residence.

If a child was born in Germany, the mother has sole custody and moves with her child to Italy, for example, joint custody (or joint parental responsibility) of both parents automatically arises solely as a result of the move. The reason for this is that in Italy, if paternity is recognised, joint custody exists under national law. However, according to the Hague Convention on the Protection of Children (Hague Convention), a child cannot lose an existing custody relationship, but takes it with them according to the "rucksack principle". This means that once joint custody has been established, it cannot change as a result of a move (Art. 16 Hague Convention 1996).

During ongoing return proceedings

Based on § 9 IntFamRVG, the youth welfare office is obliged to cooperate in The Hague Abduction Convention return proceedings, but the degree of involvement in the proceedings is largely at the discretion of the court. In principle, the youth welfare office has the important task of working towards an amicable solution between the parents within the context of return proceedings. Specific agreements between the parents can also be helpful here. A return of the abducting parent with the child to the country of origin can, for example, also be linked to the child continuing to live with the abducting parent after the return until custody proceedings have been concluded in the country of origin. It is important to note that return proceedings are not custody proceedings. The return procedure examines whether a child has been wrongfully removed and is not concerned with which parent is better able to care for and look after the child.

After a return has been decided

If a return has been decided by the court, it is the role of the youth welfare office to monitor the return in order to ensure that the child's best interests are safeguarded in the best possible way. Here it can be helpful to point out to the abducting parent that a voluntary and coordinated return to the country of origin is generally less stressful for the child than "sitting out" the return. This is because the court can decide on further measures to enforce the return order, such as the appointment of a bailiff. Supporting and accompanying children and parents at the place where the enforcement is carried out is also an important task of the youth welfare office.

The statement of the youth welfare office should be based on the information obtained during conversations with the abducting parent and the child.

The youth welfare office also has the task of evaluating whether and what obstacles exist to returning the child to the country of origin. It is relevant here whether "there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation" - or whether the child opposes the return and has reached an age and maturity at which it appears appropriate to take the opinion into account (Article 13 (1) b Hague Abduction Convention). It should be noted that in the EU and in most HCCH states, it is assumed that sufficient protective measures are in place to protect the child and, where applicable, the abducting parent in the event of return, e.g. in the event of domestic violence. The court can also decide on specific protective measures in connection with the return, e.g. how contact with the left-behind parent should be organised. Reasons such as the risk of serious physical or psychological harm to the child are therefore only relevant in very few exceptional cases.

Obtaining information on any parallel proceedings (e.g. custody proceedings) in the country of origin is at the discretion of the court. In return proceedings, the judge has the opportunity to obtain information on ongoing proceedings from a court in the member state from which the return application was filed. This is possible via the Hague International Judicial Network or the European Judicial Network in civil and commercial matters. The court hearing the return proceedings also has the option of requesting a social report from the country of origin so that the competent authority there can draw up a social report on the left-behind parent. 

Even as a guardian, it is possible to apply for surrender or return due to a breach of custody rights.

If custody (at least the right to determine the place of residence) was only transferred to you after the abduction, this works within the EU via the enforcement of a German surrender order abroad in accordance with Article 35 (1) of the Brussels IIb Regulation. Accordingly, the enforcement provisions of Article 26 et seq. of the Hague Convention 1996 apply to states that have ratified it.

If custody or parental authority was transferred to you before the parent or parents left the country with your ward, this is an unlawful removal. In this case, you have the option of filing an application for return in accordance with the Hague Abduction Convention. It is also possible to request a social report on the child's situation from the Federal Office of Justice or the International Social Service Germany (ISD) or, if the child is at risk, to forward a child protection alert.

No, ISD cannot do this. However, there is an organisation that takes on precisely this task and was created for these case constellations - Cross Country Support (https://www.crosscountrysupport.org/). Cross Country Support offers social work services tailored to the individual case in the cross-border context of child and youth welfare.

Child protection must not end at the national border. Analogous to the national handling of the forwarding of data and information in child protection in accordance with §65 (1) sentence 3 SGB VIII, information should also be forwarded abroad that is necessary for a risk assessment and the initiation of protective measures by the local child protection authority.  The legal basis for international cooperation, including data transfer, is the Hague Convention 1996. If both countries have ratified the Convention, there is an obligation to pass on relevant child protection information. Art. 34 sentence 1 and Art. 35 sentence 1 of the Hague Convention 1996 are relevant here. An attempt should also be made to forward a report to countries that have not ratified the Hague Convention 1996. The ISD provides advice and support in the assessment of child endangerment in a cross-border context.

Depending on the individual case, it may make sense to forward a child protection report based on the Hague Convention 1996 via the Central Authority, e.g. if no address is known and a residence enquiry is therefore necessary. In other individual cases, it makes sense to forward the report via the ISD and the ISS member in the target country, if there is a good network in the country involved and the address or at least indications of the whereabouts of the child(ren) concerned are available. In any case, you can contact us and discuss the most appropriate way to proceed together with our experienced team.

In such situations, a child protection alert can be forwarded via the International Social Service. The ISD refers the child protection alert to the working partner in the country concerned, who forwards the report to the competent body or authority. Even if there is no working partner in the country concerned, a way can usually be found to send the report to the competent body - e.g. via the embassy or directly to a competent child protection authority.

Until the child reaches the age of majority, the persons with custody, usually the parents, may and must decide on the habitual place of residence of their children. If the children concerned do not agree with this decision or if they have been taken abroad against their will, careful consideration must be given to whether and how support can be provided. If necessary, the ISD can initiate an attempt at mediation by local partners or the former German youth welfare office or refer them to other specialised organisations (e.g. Papatya à LINK). If necessary, a child protection report can be sent abroad. In order to ensure the participation of the children and young people concerned, they should be involved in the development of solutions and necessary decisions or at least be informed about them.

Human trafficking and the exploitation of children and adolescents is a serious criminal offence and a threat to the welfare of children. Human trafficking and exploitation often take place in secret and are difficult to recognise and prove. The local youth welfare office, in close cooperation with the parties involved, such as the police, carries out a risk assessment and initiates suitable measures to protect and safeguard the child concerned. The best interests of the child must be at the centre of all measures. 

The ISD provides advice on the different forms of exploitation, the identification of exploitation and protective measures.  When there is a cross-border dimension, the ISD can be involved if, for example, custodians abroad are to be contacted and a social report is required for the child welfare assessment.

Yes, in the case of a guardianship appointment (and the associated withdrawal of custody) of a non-German minor, the competent family court should regularly (usually with the exception of refugee children) notify the consulate/embassy accordingly - as long as the non-German minor belongs to a state party to the Vienna Convention on Consular Relations (Article 37(b) of the Vienna Convention on Consular Relations). The basis for this is Art. 5(h), 37(b) of the Vienna Convention on Consular Relations; as well as the Order on Notifications in Civil Matters, there under XIII "Notifications in Child Matters, Parentage Matters and Proceedings under the Transsexuals Act", No. 14 "Notifications of facts giving rise to family court measures within the scope of the Vienna Convention of 24 April 1963 on Consular Relations".

Within the EU and in states that ratified the Hague Child Protection Convention of 1996, "any type" of placement of a child in a youth welfare measure in another EU or Hague Convention 1996 member state ordered by a competent authority or court is subject to consultation. The consultation obligations are described in §38 (1) sentence 2 SGB VIII, which refers to Art. 82 Brussels IIb Regulation and Art. 33 Hague Convention 1996. The consultation procedure must always be carried out before the child is placed abroad. The aim of the consultation procedure is to ensure that the local authorities are also informed about the placement, approve of it and are therefore in a position to ensure the protection of the children and young people concerned if necessary. To carry out a consultation, the youth welfare office contacts the German central authority, the Federal Office of Justice. For further information, we recommend our key points for the implementation of measures abroad, in particular individual intensive educational measures abroad.

Which support measures are available abroad varies from country to country. The support measures are often similar to those in Germany and are divided into outpatient, day-care and inpatient measures. The ISD can find out from its working partners which options are available in which country.

In Germany, surrogacy is legally prohibited. Nonetheless it is a fact that children are born abroad through surrogacy on behalf of German intended parents and brought to Germany. In many cases, this creates a legal limbo to the detriment of the child's welfare. In some cases, the intended parents are entered on the foreign birth certificate as legal parents and this may also be recognised in Germany. In California, for example, the intended parents are considered legal parents by court order and the order can be recognised in Germany. You can find more detailed information on the legal background in our articles on this topic. 

In the case of biological parentage of (at least) one intended parent, paternity is usually recognised with subsequent stepchild adoption by the other parent.

In terms of residence law, there are additional challenges when entering Germany with a child from a surrogate motherhood from certain countries. If there is no effective parentage from a German person and therefore no German citizenship for the child, the relevant entry documents must be applied for, which is not always possible. A visa for family reunification is not possible if the intended parents and child are not related. There is no entitlement to reunification of the child within the framework of a possible foster care relationship. In the best-case scenario, several years of processing time must be expected before there is a legal basis and the necessary consent for the child to join the family as part of a foster relationship (possibly with the aim of later adoption).

The data available on surrogacy in general is limited. So far, there is no evidence that surrogacy harms the children born from it. Rather, the fact that the topic is often kept secret or associated with many uncertainties may have a negative impact on the welfare of the child. Irrespective of the debate on the legality of surrogacy motherhood in general, which is currently being conducted both politically and socially, complete documentation of all persons and institutions involved in the creation of the child should take place in individual cases and be accessible to affected children.

The ISD does not provide support in the area of adoption in individual cases. In this area, please contact the second German member of the ISS "familie international frankfurt e.V." (fif). Fif offers counselling and support in cross-border adoptions for professionals and private individuals. In addition, fif can also provide support in the search for relatives or the search for the origin of adults.

Please contact the ISD to discuss possible courses of action in the individual case. Close coordination and consultation with the responsible foreigners registration office and other agencies is important in such situations.

Residence permits generally expire six weeks after a departure in accordance with § 51 Para. 1 No. 7 AufenthG. However, an extension can be applied for at the foreigners registration office before this period expires. Cases in which the abducted child has previously stayed in Germany with an exceptional leave to remain are more complicated and can be resolved within the EU using the Dublin procedure.

Counselling by the ISD is free of charge. 

If you ask us to obtain a social report on a child or parents from abroad, the ISD charges a processing fee of € 180 plus VAT; for members of the ISD the fee is € 155 plus VAT. The flat rate also includes the translation of your enquiry and the report by the ISD. The working languages within our network are generally English, Spanish or French. In individual cases, the use of another language may be necessary. In this case, any translation costs incurred will be invoiced in addition to the flat rate.

For details, please check our information on cooperation.

The ISD advises professionals from public and private social work organisations, authorities and courts on all cross-border family situations. The counselling services of the ISD are provided by an interdisciplinary team with many years of experience in family conflicts with an international dimension as well as additional qualifications, e.g. in the field of children's rights and child protection. The ISD also provides counselling and support in the assessment of child endangerment in a cross-border context. 

Affected parents, young people, children and other private individuals can contact the "Central Contact Point for Cross-Border Family Conflicts and Mediation" (ZAnK), which is run by the ISD, for advice on cross-border family situations.