Since the outbreak of the coronavirus pandemic, a wide variety of conspiracy theories have been spreading: These range from the belief that the coronavirus does not exist to the claim that it is a bio-weapon bred in a laboratory to give certain people or countries world domination.

In family law, the question arises as to what extent such a world view can affect the child's welfare and thus the exercise of parental care. Can a parent who subscribes to conspiracy theories be (partially) deprived of parental custody, especially if there are differences of opinion between two custodial parents?

There have not yet been any court decisions on this. However, it is worth taking a look at the case law on comparable problems - such as custody decisions in the area of anti-vaccination or in the case of delusional custodians.

§ Section 1671 Para. 1 BGB stipulates that a separated parent who exercises parental custody jointly with the other parent can apply for the family court to transfer sole parental custody (in whole or in part) to them. The court must grant the application if it is to be expected that the best interests of the child are best served by cancelling joint custody and transferring custody to the applicant.

The first question to be examined is whether the termination of joint custody is in the best interests of the child. In principle, the court will ask whether both parents are willing and able to co-operate. In the second step, it may be asked whether the respective petitioner is the more suitable person and to what extent a transfer of sole decision-making rights is necessary.

The assumption here is that there are irreconcilable differences between the parents regarding parenting and health care issues due to their adherence to conspiracy theories.

In these cases, the child's welfare may already be at risk due to the constant disputes between the parents (see Saarbrücken Higher Regional Court, decision of 19 May 2014 - 6 UF 208/13). For this reason alone, it will often be necessary to transfer parental custody to one parent alone in the best interests of the child after examining the individual case. In its decision of 25 July 2011 (9 UF 80/11), the Higher Regional Court of Brandenburg ruled that a schizoaffective disorder with schizomanic syndrome on the part of the mother constituted a continuing risk to the child's welfare and that the father of the child, as the applicant, should therefore be granted sole parental custody in accordance with Section 1671 Para. 1, Para. 2 No. 2 BGB. During the proceedings, the mother of the child had "dealt extensively with her views on reincarnation, religion, psychology and the oppression of women/mothers by men in general" and had not let go of what the court considered to be her delusional beliefs.

In a decision dated 30 January 2014 (7 UF 54/14), the Higher Regional Court of Nuremberg ruled that the applicant mother should be granted sole custody, at least in the areas of healthcare and the right to apply for state benefits. The father considered medical treatments to be at least critical and discontinued necessary medication for the child, as he was convinced that "people can shape their own world and become creators of themselves". In his grounds of appeal, the child's father expressed views that are typical of supporters of the so-called "Reich Citizens' Movement" (including the non-existence of the Federal Republic of Germany).

In its decision of 3 May 2017 (XII ZB 157/16, NJW 2017, 2826), the Federal Court of Justice confirmed a decision of the Higher Regional Court of Jena (decision of 7 March 2016 - 4 UF 686/15, BeckRS 2016, 5270), which mainly concerned the question of whether the provision of vaccinations should be classified as a matter of considerable importance within the meaning of Section 1628 BGB or as part of everyday care in accordance with Section 1687 Para. 1, Sentence 2 BGB, which is said to be the case according to both decisions. Parental custody was transferred to the parent who pursues the better concept for the child's welfare. This is the parent who follows the vaccination recommendations of the Standing Committee on Vaccination.

In relation to the corona crisis, it can be concluded that in the case of decisions relevant to custody, the parent who, for example, refuses protective measures against the corona virus or appropriate treatment for Covid 19 can be partially deprived of custody. In particular, if a parent's conspiracy beliefs are based on or associated with a mental disorder, it will be appropriate for the family court to obtain an expert opinion in order to determine the extent of the impairment of the child's welfare.

Janne Schlüter, trainee teacher

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