Right of residence: what is it and who has it?

The right to determine the residence of a child falls under  custody , more precisely in the area of ​​personal custody. Personal care includes everything that is important for the personal well-being of the child. Means that, for example, both parents decide together where the child lives and where it is allowed to stay. It also concerns questions of upbringing, education or health care.

Right of residence for both parents

The right of residence describes the right of parents to determine the place of residence of a minor child. In addition, it also includes the possibility of making small decisions in everyday life without consulting the other parent. For example, a parent can decide alone when the child arranges to play.

Parents who are married or unmarried parents who have declared joint custody of their child automatically have a joint right of residence.

It remains even after a separation or divorce because the legislator assumes that the parents are still able to take care of their child together and to find an amicable solution regarding their place of residence. But what if the parents cannot find an amicable solution?

Sole right of residence

It is possible to apply to the family court for the exclusive right to determine your residence. It can be awarded to one parent separately from joint custody . For the other areas such as upbringing or education, important decisions continue to be made together.

In the case of sole custody, on the other hand, in addition to the right to determine the place of residence, these other areas are also transferred to one parent. Have a look at our article “Sole Custody” and learn more about the delimitations in custody.

For example, family courts award one parent the sole right to determine residence if there is a risk that the other parent will take the child abroad. Even in cases where it is absolutely impossible for the parents to agree on the place of residence of their child, the family court can make a decision and transfer the right to determine the place of residence to only one parent.

What are the effects of the right to determine the place of residence?

Here are some examples to clarify the right to determine the place of residence if the parents do not live together:

• Joint right to determine residence: If there is a joint right to determine residence and one parent moves, he or she must agree this with the other. If the other parent does not agree, the family court can make the decision.
  A holiday trip with only one parent should also be mutually agreed with the other parent. If the trip is reasonable for the child and not too strenuous, there should be no reason not to.
• Sole right to determine residence: If one parent has sole right to determine residence, he or she alone can decide whether to move with the child.
  Holiday trips can also be taken with the child without the consent of the other parent. However, mutual respect should dictate that the other parent be informed.
• No Right to Determine Residence: It is important for a child to spend time with both parents. If the parents are separated and only one parent has residency (or custody) rights, the other parent still has rights of access to the child. Against this background, he alone can decide on possible visit locations and meeting points with the child during visits. In this case, the sole right of the other parent to determine the place of residence does not apply.
  Only in cases where accompanied access has been ordered by the court is it possible that contact with the child can only take place under supervision. In our separate article “What does right of access mean?” We have put together more information on the subject for you.

Right to determine residence in the sense of the child’s well-being

The best interests of the child are always decisive in court decisions on the right to determine the right of residence. This also includes asking children from the age of four about their wishes and taking these into account when making decisions. In the case of children over the age of 14, family courts generally only ignore their wishes in particularly serious cases, for example when drug addiction is involved and there is a risk of neglect.