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									                                        Weil, Gotshal & Manges
                                         MEMORANDUM

                                                 3 April 2008


To:                    Helsinki Foundation for
                       Human Rights

From:                  Weil, Gotshal & Manges


Re:                    Visitation Rights




I.         PARENTAL RIGHTS OF ACCESS UNDER GERMAN LAW
1. Court Order regarding the Award of Sole Custody

According to German law, custody generally rests on both parents in case of their separation.
But each parent is entitled to apply for sole custody with the family court. The family court
has to grant the application if (i) the other parent consents and the child is not older than 13
years or (ii) it is expected that the award of sole custody to the applicant is in the best interest
of the child (Sec. 1671 German Civil Code). In 2000, 30.65% of the parents living separate
applied for the award of sole custody at the family courts. The family courts granted 79% of
these applications.1

If one parent is excluded from the custody ("access parent"), he/she holds rights of access
(Umgangsrecht, Sec. 1684 German Civil Code) and information rights (Sec. 1686 German
Civil Code).

2. Application with the Family Court regarding the Right of Access

If the parent holding custody ("custody parent") denies the access parent access to the child,
the access parent has to apply with the family court to be granted the right of access to the
child at a definite time and place (e.g. "on the first and third weekend of each month, starting
on Friday at 5 pm and ending on Sunday at 6 pm respectively", or "the child must be
collected at the custody parent's house"). The family court at the domicile of the child is
locally competent (Sec. 43, 36 para. 1 German Voluntary Jurisdiction Act [FGG]). Both
parents and the child have to be heard in the course of the proceedings (Sec. 50a, 50b German
Voluntary Jurisdiction Act). In case of urgency, the applicant can also apply for a temporary
restraining order (einstweilige Anordnung).

3. Voluntary conciliation proceedings



1
    Proksch, Roland, "Rechtstatsächliche Untersuchung zur Reform des Kindschaftsrechts" (2002), p. 51; Kaiser,
    Dagmar, "Elternwille und Kindeswohl – für das gemeinsame Sorgerecht geschiedener Eltern", in FPR 2003,
    p. 573, 574.



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If the access right applied for is granted by the family court and if the custody parent does not
comply with it, the access parent has the option to apply for conciliation proceedings between
the parents to and by the family court (Sec. 52a German Voluntary Jurisdiction Act). If the
conciliation proceedings are not successful, the family court will declare the unsuccessfulness
by non-appealable court order and consider ex officio whether means of coercion shall be
initiated or the custody shall be limited.

4. Enforcement of Court Order regarding the Right of Access

The conciliation proceedings are not mandatory. The access parent is also entitled to enforce
the court order or temporary restraining order if the custody parent does not comply with it
(Sec. 33 German Voluntary Jurisdiction Act). The process of enforcement of a respective
court order is time-consuming in Germany. The access parent is entitled to apply for (i) a
coercive fine (ranging between EUR 5.00 and EUR 25,000.00), (ii) coercive detention or (iii)
the use of force to enforce the right of access (except for force against the child). In general,
the access parent has to apply for these means of coercion step by step, since coercive
detention and the use of force are very drastic measures. But the sequence of means of
coercion can be changed in individual cases (e.g. if it is expected that the custody parent will
not comply with the access right on the basis of a fine).2 In general, all means of coercion
initially have to be threatened. If the threat is unsuccessful, they can be ordered by the court
and enforced by a sheriff (Gerichtsvollzieher). All means of coercion can in general be
repeated several times.3

In case that the custody parent insists on refusing access in an unreasonable manner, the
family court may also limit the spousal support (Sec. 1579 no. 6 German Civil Code) or the
custody held by the custody parent.4 In case of limitation of the custody, it will initially be
transferred to a curator as regards the right to determine the place of residence of the child for
the periods the access parent is granted access rights. In extreme cases, the custody can also
be fully withdrawn. The limitation of spousal support or custody can be considered by the
family court ex officio or can be applied for by the access parent (Sec. 1696 German Civil
Code).5

The denial of access to the child to the access parent by the custody parent may also fulfill the
provisions of Sec. 235 German Criminal Code (education of minors, range of punishment:
fine or imprisonment of up to 5 years) or in extreme cases Sec. 171 German Criminal Code
(care and educational duty, range of punishment: fine or imprisonment of up to 3 years).

II.        PARENT-CHILD INTERACTION IN HUNGARY AFTER DIVORCE
Please find below a short summary on parental rights in Hungary with regard to having
interaction and a relationship with their child after separation or divorce and the measures
used to enforce this right.


2
    OLG Frankfurt am Main, court order dated September 3, 2002, in NJW 2002, p. 3785 et seq.
3
    Kraeft, Cindy, "Vollstreckungsmaßnahmen nach § 33 FGG" in FUR 2000, p. 357 et seq., p. 417 et seq.;
    Bumiller, Ursula/Winkler, Karl, "Freiwillige Gerichtsbarkeit – Kommentar", Sec. 33 no. 12 et seq.
4
    OLG Frankfurt am Main, court order dated September 3, 2002, in NJW 2002, p. 3785 et seq.
5
    Oelkers, Harald, "Sorge- und Umgangsrecht" 2000, p. 157.



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1. Custody

Hungarian law prefers the two parents to jointly stipulate the conditions of how they will
interact with their child following a separation or divorce. Their agreement shall be
confirmed by the child protection agency (the “Agency”) having jurisdiction over the
domicile of the parent having custody of the child. The Agency will stipulate the conditions if
there is no agreement between the parents. The Agency is represented by the local notary in
small municipalities or by a department within the local government in large municipalities.
In the case of divorce or custody proceedings, the court handling the proceedings will
determine the conditions.

2. Enforcing custodial arrangements

If the non-custodial parent is denied his / her rights to interact with their child according to
the custodial arrangements mentioned above, that parent may request that the Agency
initiates an enforcement procedure within thirty days after the custodial parent fails to abide
by the arrangements. The Agency will order the arrangements to be enforced if it establishes
that the parent having custody of the child consciously impeded such interaction. The Agency
can order the execution of the arrangements and may impose a single fine (of up to HUF
500,000, that is EUR 1,850) if the custodial parent does not adhere to this order within thirty
days.

3. Modifying custody

If the parent having custody of the child still obstructs contact with and/or raises the child in a
hostile manner towards the other parent, the Agency and the non-custodial parent have the
right to initiate court proceedings in order to modify who has custody over the child.

There is actual case law proving that courts are willing to apply this provision, though
cautiously. Still, the genuine interests of the child must always prevail and therefore, the mere
fact that the child was deprived of such interaction will not result in the automatic
modification of the custody arrangements.

The Agency also has the obligation of filing a criminal claim against the parent who is
obstructing contact with the other parent. The Hungarian Criminal Code penalizes such
behavior with fines, community service or imprisonment of possibly up to one year. Recent
case law shows that the provision has already been applied by Hungarian courts. However,
the application of fines in this field seems rather moderate. According to the reviewed case
law, it ranges between the single sum of HUF 5,000 and 50,000 (that is EUR 19 and 185,
respectively).

III.      CHILD VISITATION RIGHTS IN THE U.S.
1. General

Issues related to child visitation rights in the United States are determined based on state law,
as opposed to federal law. Therefore, rights may defer from state to state and each person
seeking such rights should consult with local counsel.

Visitation rights are part of determination regarding custody of children. In most states, legal
custody (i.e. decisions regarding the welfare and upbringing of the children) will be shares
between the parents. Physical custody (i.e. where the child is going to live) can be granted to

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one parent or shared. Courts would make a determination regarding custody based on the
“best interest of the child,” a subjective standard where the court can consider, among other
considerations, the following: (i) desire of the parents, (ii) desire of a child (above a certain
age), (iii) age and health of the parents, (iv) history of domestic abuse, (v) continuation of
custody by parent that was the primary care give prior to the divorce, (vi) continuation of
relations with family members, (vii) parent’s other characteristics (e.g. if one of the parents’
new spouse is a bad influence). Prior to granting shared custody, the courts will examine also
whether the parents can cooperate and will ensure some degree of geographic proximity.

In general, a biological parent which does not receive custodial rights will be granted
visitation rights with the child by the applicable state courts. Such right is almost never
denied as it is considered to be an essential part of the parental rights, protected under the
United States Constitution. Any permanent termination of such rights would require
procedural due process pursuant to the 5th and 14th Amendment (i.e. notice and hearing), as
well as comply with substantial due process – permitted only if the laws terminating such
rights are necessary to achieve a compelling governmental purpose. Violations of applicable
court orders to permit visitation would be viewed as contempt of court and applicable state
laws would be used to enforce such court orders.

All 50 states have adopted the Uniform Child Custody Jurisdiction Act (the “UCCJA”) or a
more recent version of the law – the Uniform Child Custody Jurisdiction Enforcement Act
(“UCCJEA”) which corrected some inconsistencies in the UCCJA and added a uniform
procedure to register and enforce child custody orders across state lines. Both the UCCJA
and the UCCJEA vest exclusive and continuing jurisdiction over child custody in the courts
of the child’s home state, which is defined as the state where the child has lived with a parent
for six consecutive months prior to the commencement of the proceeding (or since birth, for
children younger than six months). If the child has not lived in any state for at least six
months, then a court that has “significant connections” with the child may assume child-
custody jurisdiction. If more than one state has “significant connections” with the child, the
courts of those states must communicate and determine which state has the most significant
connections to the child.

It should be noted that although non-biological parents and other relatives may have certain
visitation rights, such visitation rights are subject to the biological parents’ “soft veto” rights,
as such visitation may interfere with their parental rights.

2. Abuse charges

In the United States, divorce and custody law varies by state. All states have mandatory
reporting requirements when abuse is suspected in order to qualify for funding under the
Child Abuse Prevention and Treatment Act (CAPTA). Most all states consider allegations of
abuse, including domestic violence and sexual abuse, when determining custody
arrangements. The only states which do not specifically include evidence of domestic abuse
as a criteria for custody determinations are Connecticut, Mississippi and Utah. In some
states, the finding of abuse mandates placement with the other parent, or prohibition of joint-
custody. In general, family courts do not rely on criminal investigators to examine child-
abuse claims, instead a guardian ad litem (GAL) or a “child’s attorney” is appointed to
represent the interests of the child in the case. In some states, the GAL is a psychologist or
other expert who testifies on behalf of the child, in other states, the GAL is an attorney.
According to the American Bar Association Standards of Practice for Lawyers, it is the role
of an attorney GAL to investigate the history of the alleged abuse, including reviewing


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records, visiting the child’s home, interviewing people involved with the child, and reviewing
other recent evidence. The American Bar Association Standards encourage GAL attorneys to
try to place children with relatives, friends or neighbors when removal from the home is
necessary.

The effect of a claim of abuse on the child can vary from situation to situation, and from state
to state. In Massachusetts, for example, someone suspecting abuse files a Form 51-A, and a
state representative investigates within 10 days. In the vast majority of cases children are not
removed from the home. If the child is removed from the home, the state may place the child
with friends or other family members. In divorce proceedings, the allegation may include a
request that the abuser not be allowed to see the children, but many journal articles report that
if a custody case is ongoing, the child protective services are highly skeptical of sexual abuse
allegations. In some cases the investigation will result in no change. In some cases, if both
parents are suspected of abuse, the child will be placed in a home with a relative or other
family member. In other cases, the child may be placed with the state’s child protective
services agency until a more suitable home can be found.

Therefore, it does not seem that as a general rule, a child abuse allegation during a divorce
court proceeding would result in the automatic removal of the child from the home.

3. Visitation Rights of Non-Custodial Parents

Although state law differs on visitation rights, in general visitation and custody rights are
dealt with by the same court which hears the divorce case. For example, in Massachusetts,
the Probate & Family Courts handle visitation issues, as well as divorce cases. Usually, when
one parent has physical custody of a child, the other parent will be granted visitation rights.
Often a court orders the parents to develop a “reasonable visitation schedule,” meaning the
parents work out reasonable times and places for visitation. The judge usually also has
discretion to order “liberal” visitation, meaning more extensive visitation rights than the law
requires. If the parents cannot agree, then a more specific visitation schedule may be
developed by the court, specifying certain times the non-custodial parent can visit. These
schedules can be set out in very specific detail, such as spelling out locations where the
visitation occurs, which days it will happen, and how much time each visit will last. The
visitation plans can be so specific that the court even specifies that there be “no denigrating
the other parent in front of the children.”

In general, a custodial parent who fails to follow the court-ordered visitation rules can be held
in contempt of court if the non-custodial parent brings a petition for interference with
visitation. Interference with visitation is considered contempt, and can result in fines,
sanctions, or court modification of the custody order. In rare cases, the court ruling that the
other parent should instead have custody, but this is not common as some states see it as a
punishment of the children for the parent’s non-compliance. Interference with visitation may
also result in award of attorneys’ fees against the alienating parent.

Visitation rights are important, and courts do not generally eliminate all visitation rights. If
the court finds it is unsafe for the child to be left alone with the parent during visitation, a
third party can be there for “supervised visitation.” This third party may be a neutral friend
that both parents agree upon, or can be a member in a supervised visitation center, as they
have in various locations in Massachusetts. Due to visitation rights of the non-custodial
parent, a custodian must get permission from a Massachusetts judge before moving out of
state. If either parent wants to change the visitation rights, they may file a complaint for


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modification, and if there has been a sufficient change in circumstances, the court will modify
the rights.

Importantly, visitation rights are not often linked to child support payment obligations. Most
courts refuse to allow one parent to use visitation as a tool for obtaining child support, and do
not find that reducing visitation privileges because of failure to pay child support is in the
best interests of the child.




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