Brandenburgisches Oberlandesgericht; 2014-03-03; 9 UF 275/11
Decision by national courts in the field of European Union law — ECLI:DE:OLGBB:2014:0303.9UF275.11.0A
Date: 2014-03-03
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82014DE0303(51)_ENG_SUMJURE
JURE summary
JURE summary
The former husband, a German citizen with permanent residence in Germany (hereinafter ‘the plaintiff’), applied for the transfer of custody of his 6 and 8-year-old sons from his former wife, a German citizen with permanent residence in Norway (hereinafter ‘the defendant’), to him, or alternatively, for joint parental custody.
Through a temporary contact arrangement, the plaintiff was entitled to the regular personal contact with his sons every second weekend and every Tuesday afternoon. The relocation of the sons with the defendant to Norway had made any personal contact with the sons much more difficult, or even completely impossible.
The Amtsgericht Cottbus (hereinafter ‘the Court of First Instance’) dismissed the plaintiff’s applications for custody. As the necessary ability and willingness to cooperate is lacking, joint parental custody is excluded as the welfare of the child is endangered.
The plaintiff’s appeal to the Brandenburgischen Oberlandesgericht (hereinafter ‘the Court of Appeal’) is admissible and well-founded but is unsuccessful on the merits.
Norway is not a member of the European Union. For this reason, Article 8 of the new Brussels II Regulation (1), according to which international jurisdiction is based on the habitual residence of the child at the time of the application, does not apply.
However, the international jurisdiction of German courts results from Article 99 FamFG (2). Under this provision, German courts possess jurisdiction if the children concerned are German citizens.
After the hearings of the parties to the dispute and the children, the Court of Appeal concluded that the sons have a good and intimate relationship with the defendant based on affection and trust. Even the sudden move to Norway, which took place in the middle of the school year and caused some difficulties, did not change this.
The children do not wish to return to Germany. Due to infrequent contact with the plaintiff, they also do not agree to joint custody. The plaintiff did not make it clear during the proceedings that the interests and welfare of the sons were paramount to him. In the three years since they moved to Norway, he visited them only once. Rather, the impression arises that he wants to take revenge of the defendant with the dispute proceedings.
The Court of Appeal dismissed the plaintiff’s appeal.
(1) Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.
(2) Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction).