Mediation for the benefit of the child

When parents with minor children separate, issues of child care and child support are often at stake. In this context, parents often express the wish to practice the so-called alternating model in order to share time and tasks. However, this desire is sometimes one-sided and does not always take into account the best interests of the child – which can sometimes have financial reasons.

According to a decision of the Federal Court of Justice from 2017, there are more and more proceedings in which the alternating model is to be ordered against the will of one parent. But is the alternating model really the best solution? In this article, we show you how the courts position themselves on this issue and what alternatives to court-ordered regulation there are.

The best interests of the child are decisive

The decision-making basis for all judicial orders concerning custody and contact should always be the best interests of the child. And yet, it is precisely the child’s best interests that suffer when a court, with the help of experts, determines what is in its best interests.

This is mainly due to the fact that the more or less hidden influence on the child on the part of the parents has usually already begun at this moment. It should be clear that children who are in conflicts of loyalty cannot do well as a matter of principle.

Is the alternating model always the best solution?

Case law is ironclad on the issue, and the legislature has so far failed to create clear rules for the benefit of the children – and also of the parents liable for maintenance. This is because the principle of “all or nothing” applies: the parent with whom the children have their center of life is only liable for natural maintenance. Thus, he must provide food, clothing, etc., but not cash maintenance. The other parent is liable for the full amount of cash maintenance according to the Düsseldorf Table, which is used by default. He must therefore pay child support in the form of money.

This also applies if one parent looks after the children, for example, 45 percent of the time. Because of the minimal deviation, he or she must still pay the entire child support. And this despite the fact that he himself also provides food and has to maintain a correspondingly large apartment in which he can care for the children.

In the alternating model, where both parents care for the children half the time each, both parents are liable for both cash and natural support. For example, the Federal Court of Justice has ruled that in a “genuine” alternating model, the parents are each also responsible for cash maintenance and do not only owe maintenance in kind (BGH v. 11.01.2017 – XII ZB 565/15FamRZ 2017, 437). This can be financially rewarding for the parent who would otherwise be solely liable for cash support, or detrimental for the other.

This makes it clear that the real reason for the dispute about the alternating model is often not the best interests of the child, but financial considerations. Since the legislature has not yet acted and developed more appropriate legal solutions, case law must provide direction.

Courts prefer the alternating model – or not

According to the basic case law of the BGH (01.02.2017 – XII ZB 601/15), the alternating model can also be ordered against the will of one parent under certain conditions. The prerequisite for this is that it serves the best interests of the child.

Accordingly, the following are decisive

  • the educational suitability of the parents
  • the ties of the child
  • the general conditions (local proximity, school, etc.)
  • an existing willingness to communicate and cooperate on the part of the parents, because an alternating model places significantly higher demands on coordination than normal contact. It is not permissible to create the parents’ willingness to cooperate only through the alternating model.

(Criteria cited after Viefhues in: Herberger/Martinek/Rüßmann/Weth/Würdinger, jurisPK-BGB, 9th ed., § 1612 BGB (as of 16.12.2020), marginal no. 24).

This decision has been met with much interest, but also with criticism. The BGH would like to see these questions decided in the context of the contact proceedings. However, various higher regional courts see it differently (see OLG Frankfurt, decision of 29.01.2020 – 2 UF 301/19; OLG Brandenburg, decision of 24.03.2020 – 15 UF 68/17).

For example, they question the extent to which the parents’ ability to communicate (which can sometimes deteriorate willfully) can become a prerequisite for ordering the alternating model against the will of one parent. In addition, the procedural embedding is disputed, i.e. the question of whether the matter is to be decided in the context of the access proceedings or in the context of the right to determine residence (custody).

The open questions show how difficult it is to find regulations in this regard. The only thing that is clear is that the best interests of the child will suffer as a result of legal proceedings.

Who should decide on the best interests of the child?

Court proceedings in which the best interests of the child are at issue are paradoxical. If the best interests of the child are at stake, other procedures for clarifying residency and financial provision are much more appropriate. In doing so, parents can also be relieved of the worry of possibly being disadvantaged in child support decisions. Even if the parents cannot legally waive child support, they can still work on solutions to the benefit of all parties involved within the scope of what is legally possible.

Mediation to determine the best interests of the child

One process that can help deal with conflicts is mediation. Many courts have already recognized this potential and therefore recommend settling custody, access and maintenance issues out of court. This means that the parents themselves bear the primary responsibility for deciding on the welfare of their children.

In our experience, a mutually agreed settlement between parents – whatever the outcome – takes the pressure off both parents and child.