International Parental Child Abduction

Germany

DISCLAIMER: The information in this circular relating to the legal requirements of a specific foreign country is provided for general information only. Questions involving interpretation of specific foreign laws should be addressed to foreign legal counsel.

GENERAL INFORMATION: Germany is a federal country that consists of 16 states.Nevertheless, substantive and procedural law on domestic relations is federal law.Germany became party to the Hague Convention on the Civil Aspects of International Child Abduction (the “Hague Convention”) on December 1, 1990.

THE HAGUE CONVENTION: The Hague Convention is an international treaty. Its purpose is to discourage international parental child abduction and to ensure that children who are abducted or wrongfully retained in a party country are returned to their country of habitual residence. The Convention does not address child custody, but determines the jurisdiction in which custody should be adjudicated.

The Hague Convention came into force between the United States and Germany on December 1, 1990. Therefore, Hague Convention provisions for return of a child to the U.S. would apply only to children abducted to or retained in Germany after December 1, 1990. Parents and legal guardians of children taken to Germany prior to December 1, 1990, may still submit applications for access to the child under the Hague Convention in some cases.

You may qualify to apply under the Hague Convention if:

• Your abducted/retained child is currently under age 16;
• Your child was habitually resident in a Convention country immediately prior to the abduction;
• Your child was retained in/abducted to Germany after the Hague Convention entered into force on December 1, 1990; and
• You had and were actually exercising a "right of custody" at the time of the abduction/retention.

The Convention requires that cases be heard expeditiously. Most cases in Germany take a few months to resolve. However, the length of time required depends entirely on the circumstances of each individual case. For example, is the location of the child and the taking parent known? Will the taking parent consent to returning the child voluntarily? Are there many arguments and counter-arguments that need to be examined by the court? Is the taking parent asserting that there are issues of resettlement or "grave risk" under Articles 12 or 13 of the Convention?

HAGUE APPLICATION: Although it is possible to submit a Hague application directly to the German court, it is suggested that contact first be made with the Germany country officer in the Office of Children's Issues (the U.S. Central Authority for the Hague Abduction Convention). The country officer can answer specific questions and provide general guidance in preparing the application.

To apply for assistance under the Hague Convention in Germany, you will need to submit the following in both English and German:

• A completed application form (specific to Germany) for each child. This form is not available on the Internet, but may be obtained by calling or faxing the Office of Children's Issues of the U.S. Department of State.
• A detailed account of the circumstances of the removal from the U.S. or retention in Germany. In this account, it is useful to address issues such as custody rights, the child's residence, and consent to the removal or retention. Also include details on the location of the child in Germany. If you do not know the exact location, please include any information that would assist the German police in locating the child. If the application is not made within 12 months of the removal or retention, an explanation for the delay in making the application is suggested.
• One copy of either the custody order that was in effect when the child was taken to/retained in Germany or the state law that establishes your right to custody, and any agreements regarding custody or access. Note: It is not necessary to obtain a post-abduction court order of sole custody to apply for assistance under the Hague Convention. Obtaining such an order may actually complicate your case.
• If no custody order exists, and your state's laws are silent as to a parent's right of custody, an affidavit of law from a U.S. attorney is often acceptable.
• Original photographs of each child and of the taking parent. There is no requirement for the size of the photograph, but the photograph should be as current as possible and show enough detail to assist government officials who will use the photographs to locate and identify the child and taking parent. These photographs will not be returned to you.
• If and only if you wish the German Central Authority (GCA) to identify an attorney for you, enclose payment of attorney fees ( 2200) or a completed German legal aid application (see Legal Aid below) with translated supporting documentation.

Please remember:

• All documents should be typed or very clearly printed in black ink as they may be faxed more than once.
• Fill out the Hague application as completely as possible with the information you possess. Include a detailed explanation of the circumstances leading up to and surrounding the child's removal from the United States (Part IV on the application). In cases where the child has been gone for a few months or more, your statement, which can be done on a separate piece of paper, should be as detailed as possible regarding any actions you have taken to recover the child in the interim.
• If you are concerned that the taking parent will flee or hide the child when notified of the proceedings, it is very important that you state this and give the reason for this concern in section VIII of the application or on a separate page. It is helpful if this concern is repeated in a cover letter or note attached to the application.

The completed Hague application with supporting documents should be submitted to:

By FedEx, DHL, Express Mail, Regular mail*

* As of March, 2002 the State Department began experiencing considerable delays of three to four weeks in the delivery of regular mail due to mandated irradiation against harmful substances. We strongly recommend that Hague application packages be sent by courier such as FedEx, DHL, Express Mail, etc. to ensure prompt delivery.

Tel: 1-888-407-4747 (Recorded information, access to officers) or 202-736-9090
Fax: (202) 312-9743
Internet: children's_issues.html

Please also fax a copy of your application to (202) 312-9743.

CASE PROCESSING: Once the U.S. Central Authority (USCA) receives and reviews a completed Hague Convention application (including payment or legal aid application for legal representation in Germany, if you want the GCA to identify an attorney for you), it is forwarded to the German Central Authority (GCA) for action. Normally, the GCA will try to confirm the child's location and attempt to seek a voluntary return as provided for in the Hague Convention while beginning to process the application. If the applicant believes, however, that direct contact with the other parent may cause that parent to flee with the child, the applicant should state this fear in the application, provide specific reasons for this statement, and outline what course of action he/she proposes.

If the taking parent is not willing to return the child voluntarily, the GCA can appoint an an attorney to represent the left-behind parent in court hearings. These attorneys often have prior experience with Hague cases and generally have good command of the English language.

Alternatively, parents may, if they desire, retain private German legal counsel and have their Hague application handled by this attorney. Payment arrangements would then be made directly with your attorney. In these cases, it is important to let the USCA and the GCA know of this decision.

The GCA then petitions the German court for return or access and a hearing date is set. The GCA's goal is to forward the case to the competent court within seven days of receiving the completed application; this includes all necessary documents and translations to substantiate the facts of the case, as well as payment or a completed legal aid application.

The USCA will inform the applicant as soon as the GCA provides the name, address and telephone number of the attorney assigned to the case. To the extent possible, applicants should attempt to work directly with their German attorney. If at any time, however, applicants have questions concerning the operation of the Convention, they may contact the USCA. If the German attorney has any questions concerning operation of the Convention in Germany, he/she should contact the GCA. The GCA deals only with issues arising from the Hague Convention, not with general divorce and custody proceedings.

All applications should be typed or very clearly hand-written. The GCA has informed the USCA that court orders and all supporting documentation submitted with a Hague application must be translated into German to be accepted by a German court. Official documents (court orders, etc.) must be translated by a sworn translator (vereidigter Übersetzer). Letters, statements, and other documentation may be translated unofficially.

An applicant's right to custody under the Convention may 1) result from a court order that precedes the child's removal to/retention in Germany or 2) be established by state statute or case law in the state of habitual residence. In either case, the applicant must submit written proof of his/her custody rights, translated into German. Remember that the Hague Convention considers the custody situation in place at the time of removal or unlawful retention. Therefore, custody rulings obtained after removal/retention are not relevant to establishing rights of custody under the Convention.

Access/visitation applications under Article 21 of the Hague Convention must provide specific details of the proposed visitation schedule. Specify exact dates, times and places of proposed visitation.

COSTS: As mentioned, if and only if the applicant wants the GCA to identify an attorney for him/her, he/she must pay 2000. This payment can be made in either euro or U.S. dollars by certified check or money order to Generalbundesanwalt beim Bundesgerichtshof. This payment, which covers court costs and attorney fees for the initial Hague petition, must accompany the Hague application. Any unused portion of the fee will be repaid to the applicant. If the case is appealed to the regional court, there may be additional court costs and attorney fees (See Appeals below). If more funding is needed, the GCA will require the additional amount.

LEGAL AID: If the applicant's personal and financial circumstances do not allow payment of the 2000 legal fee, he/she may apply for German legal aid. There are, of course, certain financial requirements, and applicants must be able to establish their financial need to the German authorities. If you are considering filing for legal aid, please discuss this step with your contact at the USCA.

The legal aid application, available through the USCA, must be submitted at the same time as the application under the Hague Convention. You must submit a signed original, completed in German, with the currency amounts listed in euro. The applicant should provide supporting documentation verifying income, with the relevant information translated. Again, the application should be typed or clearly hand-written.

APPEALS: In Germany, decisions on applications for return under the Hague Convention may be appealed by either party. The request for an appeal must be filed within two weeks of the initial decision. The two-week period begins immediately after the local court, family division, has served its decision on the legal representatives of each party. An additional attorney's fee may be required for the appeal. Given the short time-frame within which an appeal must be filed, applicants may not be able to obtain a complete copy of the decision prior to the deadline. Applicants should contact their German attorney directly to prepare the appeal.

After an appeal is filed with the competent Oberlandesgericht (higher court), proceedings start with presentation of papers from the local court. This process takes about two weeks. After receiving the records and the pleading of the appellant and deliberating on the case, the Appeals Board of the Oberlandesgericht decides on the measures to be taken in order to make a final decision. The Court of Appeals can make a decision on the documents submitted alone, or it can schedule a hearing. A decision by the Court of Appeals is usually final.

OTHER INFORMATION: Although German courts do issue return/access orders based upon Hague applications, the actual enforcement of those orders can be difficult if the parent with the child refuses to comply with the court's decision.

For further details about the Hague Convention proceedings in Germany, please contact the Office of Children Issues: Telephone (202) 736-9090 or Fax (202) 312-9743.

CRIMINAL REMEDIES: For information on possible criminal remedies, please contact your local law enforcement authorities, or the nearest office of the Federal Bureau of Investigation. Information is also available on the Internet at the web site of the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention at http://www.ojjdp.ncjrs.org. You should be aware that filing criminal child abduction charges in the United States against a taking parent might jeopardize a German Hague Convention case.

NEW U.S. LAW ON PASSPORT APPLICATIONS FOR MINORS: On July 2, 2001, the Department of State began implementation of the new law (Section 236 of P.L. 106-113) regarding the passport applications of minor U.S. citizens under age 14. Under this new law, a person applying for a U.S. passport for a child under 14 must demonstrate that both parents consent to the issuance of a passport to the child or that the applying parent has sole authority to obtain the passport. This law covers passport applications made at domestic U.S. passport agencies in the United States and at U.S. consular offices abroad. Exceptions to this requirement may be made in special family circumstances or exigent circumstance necessitating the immediate travel of the child. The purpose of the new requirement that both parents' consent be demonstrated is to lessen the possibility that a U.S. passport might be used in the course of an international parental child abduction.

CHILDREN'S PASSPORT ISSUANCE ALERT PROGRAM (CPIAP): Separate from the two-parent signature requirement for U.S. passport issuance, parents may also request that their children's names be entered in the U.S. passport name-check system, also known as CPIAP. A parent or legal guardian can be notified by the Department of State's Office of Children's Issues before a passport is issued to his/her minor child. The parent, legal guardian or the court of competent jurisdiction must submit a written request for entry of a child's name into the Passport Issuance Alert Program to the Office of Children's Issues. The CPIAP also provides denial of passport issuance if appropriate court orders are on file with the Office of Children's Issues. Although this system can be used to alert a parent or court when an application for a U.S. passport has been executed on behalf of a minor, it cannot be used to track the use of a passport. If there is a possibility that your child has another nationality, you may want to contact the appropriate embassy or consulate directly to inquire about the possibility of denial of that country's passport. There is no requirement that foreign embassies adhere to U.S. regulations regarding issuance and denial of passports. For more information, contact the office of Children's Issues at 202-736-9090. General passport information is also available on the Office of Children's Issues home page on the Internet at children's_issues.html.

MORE INFORMATION: For further information and/or assistance in either preventing or responding to an international parental child abduction, contact the Office of Children's Issues, U.S. Department of State at (202) 736-9090 or visit its web site on the Internet at http://travel.state.gov.

The State Department has general information about welfare visits, hiring a foreign attorney, service of process, enforcement of child support orders, and the international enforcement of judgments, which may supplement the country-specific information provided in this flier. In addition, the State Department publishes Consular Information Sheets (CISes) for every country in the world, providing information such as location of the U.S. Embassy, health conditions, political situations, and crime reports. If the situation in a country poses a specific threat to the safety and security of American citizens that is not addressed in the CIS for that country, the Department may issue a Public Announcement alerting Americans to local security situations. If conditions in a country are sufficiently serious, the State Department issues Travel Warnings that recommend U.S. citizens avoid traveling to that country. These documents are available on the Internet at http://travel.state.gov or by calling the State Department's Office of Overseas Citizen Services at (202) 647-5225.

TOLL FREE HOTLINE: Overseas Citizen Services in the Bureau of Consular Affairs (CA/OCS) has established a toll-free hotline for the general public at 1-888-407-4747. This number is available from 8:00 a.m. to 8:00 p.m. Eastern Standard Time, Monday through Friday (except U.S. federal holidays).

Callers who are unable to use toll-free numbers, such as those calling from overseas, may obtain information and assistance during these hours by calling (317) 472-2328. Persons seeking information or assistance outside of these hours, including on weekends or holidays, should call (202) 647-5225.

The OCS hotline can answer general inquiries regarding international parental child abduction and will forward calls to the appropriate country officer. For specific information and other services available to the searching parent, please call the Office of Children's Issues public phone number at (202) 736-9090 during normal working hours.

QUESTIONS: Additional questions may be addressed to the appropriate country office of the U.S. Department of State, Bureau of Consular Affairs, Office of Children's Issues, SA-29, 2201 C Street, NW, Washington, D.C. 20520-2818. TEL: (202) 736-9090, FAX: (202) 312-9743. Additional information regularly updated is available on the Internet at the Bureau of Consular Affairs home page. The Internet address for the Office of Children's Issues is http://travel.state.gov/family/index.html.