Ruling of the Karlsruhe Higher Regional Court – Case No.: 5 UF 219/23
After parents separate, it was once common for the children to live with one parent while the other parent had visitation rights, such as on weekends. Nowadays, parents increasingly choose a shared custody arrangement, where the children live alternately with both mother and father. If both parents take on roughly equal responsibility for the children’s care, the question arises as to whether one parent can still claim child support. The Karlsruhe Higher Regional Court ruled on March 15, 2024, that this is not the case (Case No.: 5 UF 219/23). Child support can only be claimed by a parent who predominantly takes care of the children.
Children generally have the right to receive support from their parents. After parents separate, child support law is primarily based on the residence model, where the children live mainly with one parent. The other parent is then obligated to pay child support (cash maintenance). The parent with whom the child primarily lives provides what is known as care maintenance, according to the business law firm MTR Legal Rechtsanwälte, which also advises on family law.
Shared Custody Instead of Residence Model
However, this child support law has not kept pace with societal developments. Today, after the parents separate or divorce, shared custody is often preferred, where both mother and father take on roughly equal responsibility for the care of their children. In this situation, the question arises whether one parent can still claim child support.
In the case before the Karlsruhe Higher Regional Court, the married parents had four sons. After their separation, they agreed on a shared custody arrangement for the children: In even weeks, the sons stayed with their mother from Wednesday to Friday and in odd weeks from Wednesday to Monday. The remaining time they lived with their father.
Both parents are teachers, with the father working full-time and the mother working 75% of the time. The mother now lives with her new partner, while the father continues to live in the family home. Although the mother wishes to maintain the shared custody arrangement, she also wants to claim child support. In a preliminary injunction, she applied for authorization to do so. The competent family court granted her request.
Mother Wants to Claim Child Support
The father contested this decision. He argued that the shared custody arrangement was not being fully adhered to and that he was primarily responsible for the children’s care. Therefore, the mother should not have the authority to claim child support.
The Karlsruhe Higher Regional Court upheld the father’s appeal and revoked the mother’s preliminary authority to claim child support. In a shared custody arrangement where both parents roughly equally share the responsibility of caring for their children, neither parent has sole custody. A child is considered to be in the custody of the parent who takes on the primary responsibility for the child’s fundamental needs, such as care, nutrition, clothing, structured daily routines, and constant emotional availability, the court explained. In a shared custody arrangement where the parents equally share care responsibilities, it is not possible to determine a primary caregiver. Since the mother in this case did not take on the majority of the children’s care, she is not solely entitled to claim child support, the court clarified.
Shared Custody Cannot Be Unilaterally Changed
The court further clarified that the care shares should be based on the agreed-upon care schedule. A parent cannot unilaterally change the agreed-upon shared custody arrangement. Such a change must be made through an application to the family court, where the children’s interests must be carefully examined and considered.
The decision highlights the importance for parents to make clear and precise agreements regarding care schedules and any potential child support claims when entering into a shared custody arrangement.
MTR Legal Rechtsanwälte provides advice on child support claims and other family law matters.
