Contact and change model

When parents separate, fathers in particular often fear that they will hardly get to see their children after the separation from the mother.

For many parents, the arrangement of seeing the child only every 14 days on weekends is also unsatisfactory. Terms like “weekend mom” or “pay dad” express this dissatisfaction. Parents who live separately and practice the so-called alternating model do not use these terms. This is because they share time with the child and equally take on the parenting responsibilities.

The child has a right to contact with his parents

Not only a natural parent has the right to contact with his or her child. The child also has the right to contact with both parents. This right can only be denied in exceptional cases, for example, if it can be proven that contact causes damage to the child’s health. Apart from such extreme cases, contact is thus also legally secured. The enforcement of the right of access can also be enforced if necessary.

By the way, for the right of contact it does not matter whether the parents were married to each other. Even if one parent has sole custody, that does not affect the other parent’s right to contact.

What is the alternating model?

If the parents each care for the child half of the time, this is referred to as a so-called parity alternating model. However, this 50/50 practice does not only refer to the time frame. Rather, the child must be cared for by one parent in all important matters during the time he or she is with the other parent.

For example, it is not an alternating model if the child is with the father and the mother alternately for one week each, but the father does not make any necessary doctor’s appointments or go to the parents’ evening during his week. What matters, then, is the actual assumption of parental responsibility.

Many young parents consider the alternating model desirable after a separation. In addition to the purely temporal aspect, they are then also happy to actually take on equal responsibility for the child.

The alternating model and its legal enforcement

Only a few years ago, a change of model could not be ordered by the court against the will of one parent. This was justified by the fact that an alternating model requires a special ability to communicate and a willingness to cooperate on the part of the parents. Thus, one parent could block the alternating model by not agreeing.

However, the decision of the Federal Court of Justice of February 2017 (decision of 01.02.2017 – VIII ZB 601/15) now points the way forward. There it is stated that an alternating model can be ordered against the will of one parent for the good of the child. However, the prerequisite remains that parents demonstrate a good basis for communication and cooperation. The order of a change model is inadmissible, in order to create these bases first.

Since both parents have a direct influence on the basis of communication and cooperation, they can also prevent the court from ordering the alternating model. For example, if one parent causes a significant deterioration of the existing situation, the alternating model cannot be ordered by the court. This is the weak point of the recent decision.

The welfare of the child in the alternating model

Even though it is understandable that both parents want to get something out of their child and fathers in particular do not want to be paying fathers or weekend fathers. The focus should always remain on the best interests of the child.

In judicial access proceedings, the child often states to his or her guardian ad litem or a family court judge that he or she wants to be with both mom and dad. This is not unusual, because children have a strong sense of justice and a good sense of their parents’ needs.

But sometimes the child is simply overwhelmed with such a decision. It may think it needs to spend equal time with the parent for equity reasons. This can become a burden, especially for older children who are involved in a social environment and their circle of friends.

By puberty at the latest, many children who have grown up with the alternating model still only want a home. Their own room with their belongings and favorite clothes, which serves as a refuge or as a starting point for meetings with friends.

The well-being of the child varies greatly from individual to individual. It therefore requires special attention – and to some extent flexibility. Because as children grow up, their needs change.

How mediation can help

A mutually agreed contact arrangement between the parents takes the pressure off the parents and the child. It does not matter what the result is. The child is involved in the mediation process, depending on his or her age.

If the parents can reach an agreement on contact, not only are the court proceedings no longer necessary. The youth welfare office and, if applicable, the child’s guardian ad litem will then also no longer interfere in the decisions.

In mediation, other arrangements can also be made, for example on follow-up issues such as child support and equipment. In this process, the parents alone determined the course of the mediation. So there is neither time pressure nor the interference of strangers.