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Custody of a child
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Custody of a child is determined by the law of habitual residence. In Australia, both parents automatically have joint custody; in Germany, unmarried parents can make a declaration of joint custody.
Who has custody of a child?
Custody of a child is determined by the law of the child's habitual residence. If the child's habitual residence is in Australia, usually both parents automatically have joint custody.
If the child was born in Germany and has its habitual residence there, a declaration of custody is required if the parents are not married.
The following overview may help you to find out who has custody of a child:
| Parents' marital status at the time of birth of the child | Custody of a child if born and habitual residence in Germany | Custody of a child if born and habitual residence in Australia |
| The parents of the child are married | Both parents have joint custody. Custody can only be withdrawn by a court decision. | Both parents have joint custody. Custody can only be withdrawn by a court decision. |
| The parents of the child are not married | At the time of birth, only the mother has custody. The father must first acknowledge paternity and then make a declaration of custody. The mother's consent is required for both. | At the time of birth, only the mother has custody. As soon as the father's paternity is legally established (usually by issuance of the Australian birth certificate), the father automatically has custody of the child. A declaration of custody following the German model is not required. |
Declaration of custody
If only the mother has sole custody, the parents can make a declaration of joint custody. This is usually done together with the notarization of the acknowledgement of paternity. If you have any questions about submitting a declaration of custody, please contact us using the contact form.
It is not necessary to submit a declaration of custody for children whose habitual residence is in Australia.
Change of applicable law in the event of international relocation of the child
If the child changes its habitual residence to another country, the parental custody previously established does not change. However, new parental custody may be established in accordance with the law of the new habitual residence.
Example 1:
A child is born in Germany and has its habitual residence there. The child's father is registered on the child's birth certificate. However, no declaration of custody has been made, so the mother has sole custody.
Now the child's habitual residence changes to Australia. Under Australian law, the father automatically has custody of the child. This means that once the child's habitual residence is established in Australia, the father also has custody of the child (even if the father does not live in Australia)! In this case, the father's signature is required, for example, when applying for a German passport!
The father's parental custody can only be revoked by a court decision.
Example 2:
A child is born in Australia and has its habitual residence there. Both parents are registered as parents and “informants” on the child's Australian birth certificate. Both parents have custody of the child.
Now the child's habitual residence changes to Germany. Although no declaration of custody of the child has been made there, the father's parental custody established in Australia continues to be in effect and can only be revoked by a court decision.