The question is answered by German lawyer Thomas PUE: – The problems of a woman and her child from a first marriage moving together to Germany are regulated by Section 32 of the Residence Act (Aufenthaltsgesetz, AufentG). For children aged 16-18, joint relocation to Germany together with the mother to her German husband depends on a positive integration prognosis. This means, for example, teenagers learning German in their country of origin. Good academic performance in a gymnasium even without studying German is also considered a prerequisite that the young person will be able to quickly adapt in Germany. And, of course, Germany is not interested in the entry of teenagers with a criminal record. The German embassy also checks these data.
The law requires the husband living in Germany to provide guarantees of financial support for the foreign child. This means 11-12 square meters of living space per family member and the ability to cover expenses without state assistance. This is an important provision. The reunification of a German citizen with a foreign spouse is not subject to financial prerequisites, meaning a foreign woman can reunite even with an unemployed German. However, the wife's foreign child is not related to the mother's German husband, and his relocation to Germany is subject to financial prerequisites. Usually, the foreigner's office requires the German husband to give written consent to support the wife's foreign child. Financial guarantees from third parties willing to support the foreign child, as well as covering these expenses from the mother's personal income, are also desirable.
A difficult problem is the obscure provision of the Residence Act (AufentG), requiring the mother to have sole custody of the child (Personensorgerecht) – as a condition for joint relocation of children under 16. The laws of the CIS countries usually provide for joint custody of a child by both parents after divorce. But only if the woman can present a national certificate of sole custody of the child will the German authorities issue her permission for joint relocation (other conditions must also be met).
Often the father agrees to the child's departure to Germany to the mother's new husband and is willing to sign the corresponding permission, but does not want to give up his parental rights. This is understandable: why should he give up the child at the request of the German authorities? The woman can, of course, go to the national court and demand sole custody of the child through legal proceedings. This is lengthy, troublesome, and does not guarantee success. If the father living separately takes care of the child, pays alimony regularly, and wants to participate in his upbringing, then perhaps a Kazakh or Russian court will not see grounds to deprive such a decent father of the right to custody of his own child.
It also happens that a man wants to harm his ex-wife and refuses to transfer custody to her or consent to the child's departure. It is difficult to find a way out here: the father has the right to prohibit the child's departure, even for not entirely honest reasons.
Some fathers are missing, refuse contact with their ex-wives, do not pay alimony. Then the woman can go to the national court and (with good chances of success) demand sole custody of the child.
It turns out that German laws separate the family and force a woman to choose: to give up her new marriage or her own child. This problem is so acute that the Federal Administrative Court has taken it up. The high court confirmed the legality of Section 32 and the importance of sole custody. The law makes exceptions to this rule under 'special circumstances'. When making a decision on an individual case, the competent German authorities must take into account the special situation of the family and the well-being of the child. Example: the child is small, his father was never interested in him and divorced the mother after a short marriage; here the mother cannot be required to hand over the child to such an obviously inadequate father.
In general, when intending to marry a resident of Germany, a woman who has a child from a previous marriage should immediately work on obtaining sole custody of the child. Or, if she cannot obtain such custody, consider the special circumstances mentioned in the Law. The classification of such special circumstances is the prerogative of German agencies and judicial authorities. And they are skeptical of claims that are not supported by one's own efforts about the impossibility of obtaining sole custody. Women can be advised to file a corresponding lawsuit in the national family court. Even if the lawsuit is not granted, in contacts with the competent German authorities, they can refer to their own efforts undertaken to obtain sole custody of the child.
The refusal of the national court to grant the woman sole custody of the child contains a reasoning part. An experienced German lawyer can often use the argumentation of the CIS court to prove the circumstances of a particularly difficult case in the competent German authorities. In general, such cases are certainly not simple, but with the help of a competent specialist, in many cases it is possible to find a mutually acceptable solution that does not destroy the family.
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