Sorgerecht: Parental Custody Law in Germany

Sorgerecht, parental custody, decides who has the legal authority to make decisions for a child: where they live, which school they attend, whether they can have a medical procedure. For married parents the starting position is straightforward. For unmarried parents it is not, and a change to that unmarried default is currently being discussed in Berlin but is not yet law.

This page covers who holds Sorge today, what happens once parents live apart, when a court will step in over a parent's objection, and exactly how far the pending reform has actually gotten.

Information last verified on 19 July 2026. This page provides general legal information and does not constitute legal advice in an individual case.

The default: joint custody for married parents

§ 1626 Abs. 1 BGB gives parents the duty and the right to care for a minor child, which the law calls elterliche Sorge. It covers two things: Personensorge, care for the child as a person, meaning day to day upbringing, education, supervision and deciding where the child lives, and Vermögenssorge, managing the child's own property and finances.

For married parents, both hold elterliche Sorge jointly from the child's birth, without either parent needing to apply for it or agree to anything. The same applies once unmarried parents later marry each other, discussed below.

A different default for unmarried parents: § 1626a BGB

Where parents are not married to each other, the law does not start from joint custody. § 1626a Abs. 3 BGB is explicit: absent one of three specific routes to joint custody, the mother holds elterliche Sorge alone.

Joint custody arises for unmarried parents in exactly three ways. First, both parents can jointly declare, in a Sorgeerklärung usually made before a Jugendamt or a notary, that they want to share custody. Second, joint custody arises automatically if the parents later marry each other. Third, a family court can transfer joint custody to the father on his application, and § 1671 Abs. 2 BGB requires the court to grant it unless the mother does not consent and the court finds that giving the father custody would not best serve the child's welfare.

This means an unmarried father who has not made a Sorgeerklärung and has not married the mother has no legal custody at all, even if he is fully involved in the child's life day to day, until one of those three routes is actually used.

The pending reform: KiMoG is not yet law

A reform to this exact default is under discussion, and it is important to be precise about its status. The Bundesministerium der Justiz published a Referentenentwurf, a ministry draft bill, for a Kindschaftsrechtsmodernisierungsgesetz (KiMoG) on 11 May 2026. As drafted, it would make joint custody arise automatically for unmarried parents once both jointly acknowledge paternity, unless a parent formally objects within a month of that acknowledgment.

The public consultation on the draft closed around 10 July 2026. As of the date this page was last verified, the KiMoG has not been introduced as a formal government bill, has not been passed by the Bundestag, and is not in force. Reporting at the time suggested it is not expected to take effect before 2027 even on an optimistic timeline. Anyone relying on the current rule should treat § 1626a BGB as it stands, the mother holding sole custody absent a Sorgeerklärung, marriage or court order, as the law that actually applies today, and should check whether the KiMoG has since been enacted before assuming otherwise.

Living apart with joint custody: § 1687 BGB

Holding joint custody does not mean every decision needs both parents' sign off once they no longer live together. § 1687 Abs. 1 BGB draws a line between two kinds of decisions.

Angelegenheiten von erheblicher Bedeutung, matters of substantial significance for the child, such as a choice of school, non-routine medical treatment or a change of religion, still need both parents' agreement. Angelegenheiten des täglichen Lebens, day to day matters, meaning decisions that come up often and do not have a lasting effect on the child's development, such as everyday meals, homework routines or bedtime, can be decided alone by whichever parent the child is currently with.

The same section gives the parent the child is visiting a narrower authority over decisions of actual, practical care during that specific stay, even on a matter that would otherwise need agreement, where delay would harm the child. A family court can also restrict either parent's decision making power under this section where the child's welfare requires it.

Ending joint custody: § 1671 BGB and the welfare test

Either parent living apart from the other, where both currently hold joint custody, can ask a family court to transfer sole custody, or part of custody, to themselves under § 1671 Abs. 1 BGB. The court must grant the request if the other parent agrees, subject to an older child's own objection, or if the court expects that ending joint custody and giving it to the applicant alone best serves the child's welfare.

Where the mother currently holds sole custody under § 1626a BGB because the couple was never married and never made a Sorgeerklärung, § 1671 Abs. 2 BGB lets the father apply for a transfer instead. The same welfare based test applies: the court grants the transfer if the mother consents, or if joint custody is not a workable option and transferring sole custody to the father best serves the child.

Neither route hands custody to a parent automatically just because the parents have separated. It always requires either an application, an agreement or a court's welfare assessment; separation alone changes nothing about who holds Sorge.

State intervention: § 1666 BGB

Custody is not absolute even where both, or one, parent holds it without dispute. § 1666 Abs. 1 BGB requires a family court to take whatever measures are necessary where a child's physical, mental or emotional welfare, or their property, is endangered and the parents are unwilling or unable to remove the danger themselves.

Measures under this section range from narrow steps, such as requiring the parents to accept specific support services, up to removing custody entirely in the most serious cases. This is a state intervention power aimed at protecting the child from harm, not a routine mechanism either parent can invoke against the other in an ordinary custody dispute; § 1671 BGB, not § 1666 BGB, is the route for that.

What custody actually authorises: § 1631 BGB and its limits

§ 1631 Abs. 1 BGB describes Personensorge concretely as the duty and right to care for, raise, supervise and decide the residence of the child. § 1631 Abs. 2 BGB then places an explicit limit on how that authority can be exercised: the child has a right to be raised without violence, physical punishment, psychological harm or other degrading measures.

§ 1631 Abs. 3 BGB also entitles parents to ask a family court for support in exercising Personensorge in suitable cases, meaning the state's role toward a struggling parent is not only intervention under § 1666 BGB but also assistance on request.

The Wechselmodell: can a court order it against a parent's wishes

The Wechselmodell, where a child spends roughly equal time living with each parent, is increasingly requested, but German law does not give either parent an automatic claim to it. The Bundesgerichtshof confirmed in its decision of 1 February 2017 (XII ZB 601/15) that a family court can order a paritätisches Wechselmodell as part of a contact arrangement even against one parent's wishes, but only where it genuinely serves the child's best interests on the facts of that case, not as a default outcome or a compromise between two parents who cannot otherwise agree.

In practice this means a court weighs the same welfare factors it would for any residence decision, including the child's own wishes depending on age, the parents' actual ability to communicate and cooperate, and the practical realities of school and distance between two homes. Where the parents' relationship is significantly conflict laden, courts have generally not treated an equal time arrangement as serving the child's welfare, since the model itself depends on cooperation it cannot create.

The child's own voice, and the Jugendamt

A child's own wishes carry increasing legal weight as they get older, and a court will typically hear directly from a child old enough to express a reasoned preference before deciding a custody or residence dispute. The Jugendamt is also routinely involved in contested custody proceedings, giving the family court an independent assessment and often working with the parents to reach an agreement before a judge decides anything.

How custody differs from contact

Sorgerecht and Umgangsrecht are separate legal questions and are frequently confused. Custody decides who has the authority to make decisions for the child. Contact decides which parent the child spends time with, including a parent who has no custody at all. A parent can lose custody entirely under § 1666 BGB and keep a right to contact, and a parent can hold full custody while a court restricts contact in an unusual case. The rules for contact itself, including a parent's right and duty to see the child under § 1684 BGB, are covered on contact rights, Umgangsrecht.

Related pages

For the child support obligations that continue regardless of who holds custody, see child support and the Düsseldorfer Tabelle. For the divorce process itself, see divorce in Germany. For maintenance owed to a spouse, see spousal maintenance. For the wider picture of German family law, see the Germany law hub.

Frequently Asked Questions

Who has custody of a child in Germany if the parents are married?

Both married parents hold elterliche Sorge jointly by default under § 1626 BGB, covering both personal care decisions, Personensorge, and management of the child's property, Vermögenssorge, from the moment the child is born.

Does an unmarried father automatically have custody in Germany?

No. Under § 1626a BGB, an unmarried mother holds sole custody by default. Joint custody for an unmarried father arises only through a joint Sorgeerklärung, marriage to the mother, or a family court order transferring custody to him.

Is the mother-only default for unmarried parents changing?

A reform, the Kindschaftsrechtsmodernisierungsgesetz, would make joint custody automatic on joint paternity acknowledgment unless a parent objects. As of 19 July 2026 it is only a draft bill from 11 May 2026 whose consultation closed around 10 July 2026. It is not enacted and is not expected in force before 2027.

Can one parent decide everything alone once parents with joint custody separate?

Only for day to day matters. § 1687 BGB requires both parents to agree on decisions of substantial significance, such as school choice or non-routine medical care, while the parent the child is currently with can decide everyday matters alone.

How can a parent get sole custody after separation?

By applying to a family court under § 1671 BGB. The court grants sole custody if the other parent consents, or if the court finds that ending joint custody and transferring it to the applicant best serves the child's welfare.

Can a court order a 50/50 Wechselmodell against a parent's wishes?

The Bundesgerichtshof confirmed in 2017 that a family court can order a Wechselmodell over a parent's objection, but only where the child's best interests genuinely support it on the specific facts, not as a routine default or compromise.

When can the state remove custody from a parent?

Only where a child's welfare or property is actually endangered and the parents cannot or will not remove the danger, under § 1666 BGB. It is a protective intervention, not a tool for resolving an ordinary custody disagreement between parents.

Is custody the same as the right to see a child?

No, they are separate. Custody, Sorgerecht, is decision making authority. Contact, Umgangsrecht, is time spent with the child, and a parent without custody can still have a right to contact under § 1684 BGB.