german father in jail for christmas over alimony

[anglane]

German Father in Jail for Christmas over Alimony Dispute

My partner is spending Christmas in jail right now in Regensberg, Germany-He and his ex-wife are German and have 3 children, the youngest was born in the US. He asked for a divorce in 2000, while they were living in the US. She kicked him out that day,within 2 weeks had moved the children to Germany. He let her go feeling he had no choice at the time. He had just been offered a tenured position at the University he was teaching at.

Since 2000 he has paid $2000 Euro/mo for alimony and child-support, he has visited 3-4 times a year and called everyweek, e-mailed, written etc.-The ex-wife has never been cooperative with any of the visits, or helped the children return posts, etc.-at one visit she even took the youngest child to Italy. His entire family is in Germany and she has not allowed them contact either.

She was awarded physical custody in December 2002, in a hearing where he was present, but NOT REPRESENTED BY A LAWYER! The German court said he needed one but he refused, and they went ahead anyway. By what i've been reading that is not "possible" in Germany. 8 months ago he stopped her alimony payments as a last resort after countless pleading phone calls & letters to the court, and the ex -wife, requesting to be part of his children's lives- (asking only for monthly updates on their well-being, achievements, development, and to be able to visit them at pre-determined times in germany without a hearing every time). He hoped the court and social worker would intervene on his behalf he continued to pay $1000 Euro/month child-support payments.

It seemed for a week or 2 that this might work-(she answered the phone and talked to him a few minutes and let the kids talk to him) and he sent her the full amount that month!-He was desperate and held hostage by her for any contact with his children!(I have seen the children with him, they love him and are being torn apart by this).

Her cooperation didn't last, she demanded he pay $12,000 Euro in back-support at once-he said he would be happy to if she would change her ways-this only made her angry and she cut off ALL contact.

I have watched him call their number every single morning for 4 months now with no answer. He resorted to taping himself reading stories to them & burning them on cd's but we have learned that she is throwing his mail away as soon as it arrives.

For the last months he has been arranging this trip to Germany determined to see his children perhaps for the last time yet refusing to go to court and put his kids through the pain of the emotional tug-of -war they go through every visit where he is forced to attend a hearing then she clearly shows her dissapointment when they leave with him. He stays at a little hotel in town and is allowed to have them from 10AM to 6PM (even when the children plead to stay the night with him).

When the court said he couldn't see them unless he came to court yet again(not to discuss issues with the children but to discuss money "owed" to her) he said forget it and cancelled his ticket. Then a social worker called and said he could see the kids after all from the 26th to 30th (when he is supposed to return to the US).

On his arrival he went to his brother's house, 300 miles away from the court (he had given the social worker his contact info). 2 days later police came and put him in jail-where he can have no contact with anyone-he was able to call his brother once to tell him to let me know-His brother has been trying for 4 days to get someone to look at his case to see if he can pay the back alimony and be released. No judge where he's in jail knows his case and they can't find his file etc. - and it's christmas..so there he sits, not knowing what's going on..all this for wanting to see his children.

He was led into a trap. I have seen posts on here about German custody laws moderninzing? How can this happen? What can we do??? Now I have learned that they have set a hearing date for January 5th! His return flight is on December 30th! He has already purchased tickets for a conference in New Zealand departing January 5th from the US. Can they do this? Keep him locked up this long for a civil case? I know he will pay the penalty even though I can't talk to him he has been saving the $ just in case something happend like this...we thought it was possible they might take his passport someday and demand the money but never expected him to be jailed with contact forbidden for 2 weeks!
Or longer?

 

[NYClex]

Yikes, I am sorry to hear this. This is a real mess.

The problem is, this is not just a civil matter. German law does not have much sympathy for deadbeat parents, and in the eyes of the law that is who you are when you do not pay court ordered child or spousal support, no matter what good reasons you might have for that. This is a crime, punishable by up to three years in prison.

So I assume that is what happened: his ex-wife probably filed a criminal complaint against him under § 170 of the German Penal Code and he got arrested for this.

Also you should know, that in Germany basically the whole country shuts down between Christmas and New Year's, most people don't work in this time and it is absolutely normal that courts are closed and won't have any hearings during this period.

Also, in Germany it is absolutely normal that inmates are not allowed to use the phone. This is not like in America. In Germany inmates are only allowed to communicate by mail with family or friends, or in person during personal visits. The only people that can be summoned on short notice is their attorneys.


He should not have taken the law in his hands but should have gotten a German lawyer and should have gone to court to enforce his right to have contact with his children. I sympathize very much with him, when things are like you described them, but it never pays to take the law into your own hands, neither here in the US nor in Germany.

Now he is facing criminal charges as well as the problem of the unpaid support and he has materially worsened his position in the custody battle. He needs to hire a good attorney who helps him sort this mess out. He probably can forget about his travel plans.

 

[anglane]

oh my god please don't say this........is there any way i'm in shock

 

[anglane]

Thank you for responding last night-the news you gave was a devastating shock -I looked up the penal code 170-and it says, as you know ,that the life necessities of the person entitled to maintenance have to be endagered. For her to claim this to the court would be perjury. She has been working (we know this but it might be hard to prove unless the children or her parents would tell the court). Plus he has continued to send the child-support. I fear that they are not specifying this and lumping both payments together and treating him as if he is omitting the child support instead of the alimony. Is there anything I can send to the court such as dated photographs of the children from his visit in August which show the children happy and healthy?
Thank you so much for your time. Though it was bad news it is better to know what you are up against than to be in the dark-I know my partner is in the dark right now and I can't imagine what he is going through. You mentioned letters could be written-why wouldn't they let his brother even write him a note when he went to the jail?

 

[NYClex]

The problem is, that the courts have interpreted the clause "endangering life necessities" very liberally. Under German law the government will step in if someone who has to pay support does not do it. Once the government pays, it does not let those go, who actually should have paid. The courts have interpreted the law this way: any time the government steps in and pays welfare the person who actually should have paid has endangered the life necessities of the person who was owed support.

Therefore it can even have been the welfare office who filed the criminal complaint.

I looked up some case law and surprisingly the courts have been pretty strict in applying this provision, they hand out more jail time than is usual for German courts.

However, his attorney should hopefully be able to get this problem solved with a fine.

It is very unusual to be in jail until the trial, but I assume that this guy has no residence in Germany and therefore is deemed to be a flight risk under § 112 Crimiinal Procedure Law.

At the arraignment hearing which probably his attorney has asked for and which will be the one in January he should ask for a release on bail under § 116 and 116a Criminal Procedure Law, probably in combination with surrendering his passport. The judge then can suspend the arrest warrant.

Under § 28 of the Law Governing Imprisonment (Strafvollzugsgesetz) the inmate has a right to exchange mail. BUt under § 29 this mail needs to be supervised, which means every letter except for communications with his attorney will first be read by the jail staff and needs to be cleared. So it might take a while until a letter reaches him, especially since now, as I had written, in Germany most people don't work between the holidays.

So it will take a while to sort out this mess, but his attorney should be handling this. He probably will have to arrange for payments of the support and show how he wants to fulfill his obligation in the future and probably will be sentenced to a fine or probation. Then he can use the civil courts and try to challenge the support obligation and to enforce his right to have contact with the kids.

Let us not kid ourselves, German family law, as American, in practice is heavily slanted towards the mother. This is not right but it sadly is a fact of life. But the mother's behavior, as you described it, would be illegal under German law. It is just that he needs to go through the courts.

I hope everything is going well for him.

 

[anglane]

I appreciate the time you have spent on our problem so much. I have been going through all his paper work and wire transfer records and he has been paying every month since 2000-some amounts are way above and some slightly below-but it looks like if everything were totaled he would be fairly even(I fear fairly even doesn't count in Germany)...His family hopes to get a lawyer tomorrow as yet theyve been unable to find anyone who covers Regensburg-I am going to fax all of the documents I have as soon as I receive a fax #. I will pass on your advice and I hope to have good news tomorrow.
Again-Thank YOU!!!!!!!!!!!!!!!!!

 

[NYClex]

Now I don't know any attorney in Regensburg but I found two offices where you might want to have a look. The first office is specialized in criminal law and family law which would be a good combination: http://www.rahaizmann.de/
One of their lawyers was practicing in England and Australia, so they definitely should speak English very well.

the other is specialized in family law: http://www.kanzlei-escherich.de/

As I said, I have no idea if these guys are good or not.

 

[anglane]

The End?

I wanted to let you know what happend-they let him out today! His mother had to pay 15,000 EUR cash in Berlin - then they released him/with his passport! I have talked to him twice and he will be home the 30-th as planned. He is exhausted and was kept in a small cell and let out 1 hour/day to walk in circles in the courtyard..they were fed minimally example: his first meal was dry toast and water-
This has, however, rejuvinated him and he is full of compassion for the other men in the jail who will stay in there for up to 6 months until their trial-with no rights! you have to exist like that if you have no $ for a lawyer until you can apply for a public defender! and as you know the economy in Germany is terrible right now with thousands out of work.
His mission now is try try hard to rectify as much as possible what he went through and to hold the childrens mother accountable for her wrongs as well.
Thank You Again For Your Help!!!!!!
P.S.
If he becomes a US citizen would they be able to do this in the future or force him to pay in the US?
I almost forgot Yes he has found and contacted a lawyer in Berlin!!!!

 

[NYClex]

Well, that is good news. It is nice to see that they actually work faster than one suspects.

His citizenship does not make any difference in these cases. If he violates German law or a German court order he can be prosecuted anywhere a German court has jurisdiction, regardless if he is an American, German or whatever citizen. So anytime he enters Germany in the future that can happen again if he does not pay the alimony the court ordered him to pay. And since Germany nowadays is part of the European Union it can happen that he can be arrested and extradited anywhere in Europe or theoretically even in every country with which Germany has an extradition treaty, and that is most of the world. In practice, though, German courts rarely seek extradition for such a minor offense. But since the introduction of the so called "European Arrest Warrant" any arrest warrant of one member country of the EU is enforceable in every member country.

German courts do not have jurisdiction in the U.S. so he cannot be arrested for evading child support here in the U.S. However, the U.S. and Germany have signed a treaty that civil court orders concerning child support etc. of both countries can be enforced in the other, so it is possible that his ex-wife could enforce the order through an American court.

He also can get into deep trouble with American immigration law. Generally aliens who have been convicted of crimes are inadmissible or deportable in the United States, regardless of where the conviction happened. So with this action he actually put his legal status in the United States in jeopardy.

I can only advise him to religiously pay the court ordered alimony until he gets a court to change things, which actually is pretty unlikely.