Custody withdrawal is not a tool for sanctioning parents
Custody of children is often a major point of contention between parents during separation and divorce. In all matters relating to custody, the child’s well-being is the top priority. Therefore, custody may only be withdrawn from a parent if it is necessary to protect the child’s welfare. This was clarified by the Higher Regional Court (OLG) of Frankfurt in its decision dated January 29, 2025 (Case No.: 1 UF 186/24).
If the parents are married, they share joint custody of their children. This joint custody continues even after divorce. However, both parents have the right to apply for sole custody. What always matters most is the welfare of the child. Parents should keep this in mind, as children can suffer from ongoing parental conflict, even if the parents are living separately. If the conflict escalates to the point that it endangers the child’s welfare, this may even result in the withdrawal of custody or the right to determine the child’s place of residence. However, this is only permissible in particularly serious cases, explains the law firm MTR Legal Rechtsanwälte, which also advises in family law matters.
Ongoing Parental Conflict
This is demonstrated by the decision of the OLG Frankfurt. In the underlying case, the married parents had separated. Their three children, aged 7, 10, and 12, had mostly lived with the mother since the separation. Despite the separation, both parents continued to exercise joint custody. However, repeated legal disputes arose. The parents could not agree on a consistent and stable arrangement for the children to see their father. The father blamed the mother for this and accused her of manipulating the children. He then applied for sole custody.
The family court obtained an expert opinion, which also discussed the temporary placement of the children in a suitable youth welfare facility. A weekly residential group had already been identified, and the youth welfare office had scheduled an introductory meeting. The mother refused to attend the meeting and strongly opposed relocating the children to the group home. As a result, the father applied for the right to determine the children’s place of residence.
Withdrawal of the Right to Determine the Place of Residence
After further hearings with the children and other parties involved, the family court withdrew the right to determine the children’s place of residence from both parents and transferred it to the youth welfare office. The office arranged for the children to move into the weekly group, and they spent weekends alternately with their mother or father.
Both parents appealed the withdrawal of this right—successfully. After a renewed hearing, the OLG Frankfurt ruled that the children should return to their mother’s household and that the parents should once again exercise joint custody. The court found that the withdrawal of parental custody had been disproportionate.
Child’s Welfare Has Priority
The court explained that placing the children in out-of-home care combined with the withdrawal of custody had not been the only appropriate and proportionate means of improving their situation. Although the children had suffered due to their parents’ high-conflict relationship, removing them from their mother’s home and placing them in group care posed significant developmental risks. Such a move would mean complete uprooting from their home, their mother, extended family, friends, and wider social environment. Furthermore, there is no empirical evidence supporting the effectiveness of removing a child from the household of a supposedly manipulative or alienating parent. The expert report failed to recognize this, according to the court.
Child protection measures must always be strictly guided by the child’s best interests. The purpose of a custody decision is not to punish alleged parental misconduct, the OLG Frankfurt emphasized.
This ruling by the OLG Frankfurt highlights that the child’s welfare must always come first in cases of parental conflict. However, if the child’s welfare is at risk, custody may be withdrawn.
MTR Legal Rechtsanwälte advises on matters of custody and other areas of family law.
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