Access & custody, maintenance law in times of pandemic

The coronavirus pandemic is having a significant impact on our social lives, and interpersonal relationships regulated by family law are also affected.

For those families whose relationships with each other are regulated by court decisions or out-of-court agreements, this may mean that appropriate and balanced solutions in the past are no longer entirely feasible. Parameters that were the cause of a particular arrangement may have changed fundamentally and abruptly.

Regardless of whether it concerns the areas of family law relating to the consequences of divorce, parental custody or maintenance obligations between relatives in a direct line: changed circumstances require short-term, appropriate and goal-orientated action.

In the case of rights of access between a parent and children, for example, this can mean that routes that until recently were considered harmless and could be travelled by public transport without any problems are no longer open. Handover arrangements, such as picking up a child from school or daycare by the parent with parental authority, are suddenly no longer feasible due to the general decrees in force. Pre-existing illnesses or other risk factors, such as those of grandparents or carers involved in the child's care, can jeopardise arrangements that were previously balanced and took into account the interests of all parties involved.

Even with recurring monthly maintenance payments, it may be necessary to adjust payment amounts at very short notice.

In general, adjustments due to changed circumstances are subject to the requirement, which has always been repeated by the XII. Civil Senate of the Federal Court of Justice, which is responsible for family cases, is to take a concrete look at the circumstances of the individual case. A generalised, schematic approach is prohibited. Rather, the individual, very special characteristics of the respective family constellation must be explicitly worked out.

However, the same applies to all changes: If your family relationship is governed by an enforceable court order or an enforceable notarised agreement, a mutual agreement with the other party is required to amend it. If there is no agreement, only a court can suspend or amend these arrangements.

In the case of maintenance obligations, we would like to point out as a purely precautionary measure that the unauthorised suspension of titled maintenance payments can, in the worst case, have criminal consequences. In the case of contact arrangements, enforcement measures and penalisation proceedings may also be initiated if parents culpably disregard existing contact arrangements.

In all areas of family law, the law provides for regulations that allow agreements made or court decisions to be reviewed retrospectively due to changed circumstances. However, these must be presented to the court in the procedures provided for this purpose. A modification of the court decision or out-of-court agreement against the will of an authorised party is generally not permitted.

Please get in touch with us so that we can review the existing regulations and legal relationships and work with you to develop appropriate solutions for your specific individual case in light of the changed circumstances.

We are currently happy to provide advice by telephone.

Dr Judith Krämer
Lawyer and specialised lawyer for family law

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