Right of contact against one’s will?
In simple terms, the right of contact means the right to contact between parents and child. The right of contact is a fundamental right of the parent-child relationship and exists regardless of who has custody for the child. Regular and secure contact between parents and children is normally in the best interests of the child. In practice, unfortunately, there are always bitter disputes about the right to contact. It is often a question of who can look after the shared children and when. If a court has to decide on the right of contact, various factors play a role. Legally, the “number 14” is a magical limit here.
What is a “normal” right of contact?
There is no universal answer as to what a “normal right of contact” is. It always depends on the specific case. If possible, contact should include both leisure time and day-to-day care of the child and the parent with contact rights should not be forced into the role of an “occasional visitor”. Basically, when courts have to make a decision, it depends on how old the child is on the one hand and on the other hand what the previous practice has been, i.e. who has looked after the child up to now and how intensively. With young children, the courts tend to recommend shorter and more frequent contact. The older the child is, the more the child’s wishes/needs need to be considered. There are often widely differing opinions as to who mainly looked after the children until the separation. If the parents cannot agree on contact rights, the competent court must decide. The custody court focuses on the best interests of the child and tries to find the best solution in the interests of the child. The court works closely with the family court assistance (Familiengerichtshilfe), which consists of qualified psychologists, educators and social workers. Other experts may also be consulted in order to determine which right of contact would best suit the child. The first premise when determining contact rights is always the best interests of the child. The interests of a parent must take a back seat when it comes to the best interests of the child.
What if children refuse contact?
Contact proceedings are often emotional for parents. If children refuse contact with one parent, it is important to evaluate why this is the case and whether there are valid reasons for this refusal. Parents often accuse each other of instrumentalizing their child or influencing them against the other parent. Even if this can sometimes be the case, it does not have to be the reason for the child’s rejection. It should not be an automatic reaction to blame the other parent if the child refuses contact. In the best-case scenario, together one can take the necessary steps to restore the child’s trust.
The court faces a difficult challenge in such cases. In general, if there is no risk to the child’s welfare, regular contact with both parents should be encouraged. On the one hand, the aim is to prevent the children’s negative attitude from being reinforced by having contacts that they do not want. However, it also depends on why the child rejects contact, whether it has been influenced or not and also how old the child is. The will of the child is an important factor when evaluating the right of contact. However, the will of the child is not necessarily the (only) factor relevant to the decision. The will of the child is always subject to fluctuations (sometimes it also depends on who asks the child). Sometimes children are influenced. The older a child is, the more likely it is that their wishes will be respected. According to established case law, a child’s refusal to have contact with a parent can be relevant and considerable, especially in the case of older children. However, younger children are often unable to assess which specific form of contact with both parents is best for their development. With young children, contact can also take place or be established against their will.
What is special in the case of 14-year-old children?
The law stipulates that if an adult child (person between 14-18) expressly refuses contact on their own grounds, the court must reject the application for contact rights after the (failed) attempt to instruct the child and try to reach an agreement.
In simple and concise terms, this means that 14-year-old children can no longer be “forced” to have contact with one parent. Applications for contact rights are therefore no longer promising from this age if the child refuses. It is also important to know that the 14th birthday is not a rigid limit for contact. Case law has already stated several times that even if the law does not apply to children who are not yet 14, the child’s refusal of contact still has a certain significance. This is particularly the case if the refusal corresponds to a serious, uninfluenced will of the child and if plausible reasons for this can be identified.
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