Sole custody of your child: How to apply

When parents separate or do not live together, the question often arises: sole or joint custody? The latter should actually always have priority, because it is important for children to have consensual contact with mother AND father. This is also how the case law sees it: After a divorce, for example, joint custody automatically continues. The same applies after a separation if custody was previously shared. See our article Who Has Joint Custody? for more information. Sole custody can only be transferred upon application under certain conditions.

Sole custody for single mothers

Only unmarried mothers automatically receive sole custody. But here too, from a legal point of view, the view is taken that joint custody with the child’s father serves the child’s well-being more than sole custody. A single mother therefore has the opportunity to include the father in the joint care of the child.

Against this background, unmarried fathers have also had it easier since May 2013: They can now apply for joint or sole custody without the mother’s consent. Have a look at our article “Custody for the father” . Here you will find information about the change in the law and the background.

Grounds for Sole Custody

In principle, an application for sole custody is always considered and decided on an individual basis. In order to be able to obtain sole custody of a child, there must be serious reasons – unless the other parent agrees anyway. Parents are expected to agree on custody issues and to be able to separate their problems with one another from responsibilities to their child – at whose expense any grueling custody battle always ends up.

Sole custody is granted if joint custody poses a threat to the well-being of the child; for example, when a parent neglects the child, is violent, or the parents are absolutely unable to come to an agreement and the child suffers as a result. Sole custody can also make sense if the other parent is unable to exercise joint custody, for example because they live abroad or because they have been sentenced to imprisonment.

It is not uncommon for a custody dispute to end differently than expected: the parent who did not apply for sole custody is awarded it. This can be the case, for example, if the parent applying does not want to support further contact with the other, but this does not contradict the best interests of the child. It is also possible that only parts of the custody rights, such as the right to determine residence or the custody of assets, are applied for or granted by one parent alone.

Sole Custody Criteria

There are different approaches that family courts take to deal with a request for sole custody. Some courts base their decision on a psychological report that provides information about which parent is better suited for sole custody. Others try to avert custody proceedings by getting the parents to cooperate and (continue to) exercise joint custody, for example through mediation.

In general, the following aspects are considered in an application for sole custody:

• Continuity in parenting: Which parent has the greater role in parenting? With which parent can child development be guaranteed in a stable environment? Where has the child lived since the separation?
• Encouragement: Which parent can better encourage the child’s development? What are the personal skills and what are the living conditions like?
• Bonding: Which parent is the bond stronger with? Bonds to siblings and other people are also taken into account if the decision involves a change of location, for example.
• Will of the child : The older the child is, the more his or her will is taken into account in the decision-making process. A hearing usually takes place from the age of four. Children over the age of 14 have the right to have a say and the opportunity to object.

All in all, a (non-consensual) application for sole custody needs to be carefully considered. A messy custody case is not only exhausting for everyone involved, it can also take a different turn than intended. It is well known that the child suffers the most. For the sake of their child, parents should always try to find an amicable solution on a factual level in order to be there for them together. It’s certainly easier for them, too, not always having to make important decisions on their own for the benefit of the child.