American marrying a German in U.S. - How would custody work?

[PandI]

I am American and my girlfriend is German (working in the States for 3 years now with appropriate work papers). She has a lingering question related to marriage that I would like to put to rest. If we get married and have children in the States, she heard from friends (of course) that in case of a divorce she will not be able to leave for Germany with her kids if she wanted to.

I think the whole discussion is ridiculously unromantic, but that having been said, would the law instantly prevent her from taking the kids to Germany, or is it that the law allows me to prevent it? So if she "wins" custody, she must stay in the United States? Thank you for your help.

 

[NYClex]

I have answered this question a couple of times already in this forum. Have a look for the same topic here. Look for keyword "German"

It is a very difficult question. First of all you have to distinguish between "custody" and "visitation rights", or "Sorgerecht" and "Umgangsrecht" in German.

The law says: Both parents should have the possibility to interact with their children, even if the parents are divorced. No parent shall unilaterally prevent the other parent from seeing and interacting with his or her children.

Until a court decides about custody, both parents have the same right to care for the children and to determine where they live. If one parent removes the children from the place where the children usually live without consent of the other this is unlawful.

Example: The German mother decides she had it and wants to move immediately back to her mother in Germany. She takes the children and leaves the US on the next plane without any court order or anything. Up to that day they lived for 3 years in Virginia.

The American father can file an injunction with the Virginia court. The Virginia court has jurisdiction, because the family had been living there more than 6 months. Germany has signed an international treaty to send back the children to Virginia, if the court there orders so, to have the matter resolved there.

Now a different scenario: The mother obtains a court order in the Virginia court granting her temprary custody untiil the final determination of custody in the divorce proceedings. Now it is up to the court to allow her to take the children abroad or not. Let's assume the father objects vehemently and asserts that if they would be brought to Germany he is prevented from interacting with the children and that the danger is that the mother would simply not let them return to the States for the final determination.
Now the court can grant the request to deny the mother to take the children out of state, country or even county. If she would do so anyway, she could be charged with child abduction and Germany would be bound by treaty to send the children back.

Third scenario: The mother waits in the States until the divorce is finalized and again she is awarded custody (legal and physical). Now finally she wants to move to Germany. Again the father says: Wait a minute, what about my visitation rights? I want to see them every second weekend and 4 weeks in summer, I cannot go to Germany every second weekend.

Now the court is at an impasse: It is true that you cannot expect the father to go to Germany every second weekend. But can you force the mother to live in a foreign country because of that? The law has no clear answer. No matter how it decides, someone will be unhappy. Now, if the couple cannot agree on a fair way to handle this, the court will look first at the interest of the children. How much time did they usually spend with the father? How attached are they to America? Then only secondarily the court will look at the mother's and father's wishes. How much has the mother gotten accustomed to living in the States? Can it be expected of her to stay here? How about the father going to Germany every once in a while? The court will try to find an answer. It has happened that it ordered the children to stay in the US. It has also happened it allowed the children to move to Germany and ordered the mother to send them back to the States each summer for vacation etc. Again, the party who would violate the court order would violate the law.

Of course, this also is true for the reverse case: The father gets custody and wants never to allow the children to visit their mother in Germany. The court would not take that.

Usually the couple will be strongly urged to find a fair way to deal with this problem without court interference. For the sake of the kids one can hope the couple is able to.

 

[PandI]

Thank you

Thank you very much for your lengthy reply, it was very informative and educational. (PS - I did search for "German" but I only saw discussions about the reverse situation - a divorce in Germany, info. about German law, etc.)

 

[PandI]

Marrying a foreigner....

A follow-up I guess....If anyone has any experience in marrying someone who is not an American citizen, do you have any thoughts, tips, or warnings about legal pitfalls.....or other advice before I take the plunge? THANKS!

 

[NYClex]

Germany and the U.S. have very similar attitudes when it comes to the legal aspects of marriage. So there is not that much to be wary of. You need to decide where you want to marry, marriage in one country is legally valid in the other, but might need to be registered separately.

When it comes to divorce, which you hopefully will never have to bother about, there are some major differences between both countries and it depends on where you live and where you would be divorced, to answer the question which law would govern.

Concerning children, both countries have very similar ideas about custody.

So, considering marriage, you might want to think of a prenuptial agreement, but this usually only makes sense if you have major assets. If you draw one up, you might want to consult with an attorney who knows German family law as well. Prenups can be tough to get accepted in out-of-state courts, even tougher in foreign courts, they would have to fit that state/countrie's laws. But as I said, usually they only make sense when there is a lot of money involved.

Depending where you are in the U.S., you might be in a community property state or not, German law also has something like community property. So there is not much difference to American law.

Anyway, both countries have signed treaties deciding jurisdiction: If you live in the U.S. longer than 6 months, American law will govern all your subsequent legal problems unless you move back to Germany for longer than 6 months.

Otherwise I only can advise to have a close look at your mother in law But her being that far away might even make this not so important