OLG Frankfurt; 2015-03-26; 4 UF 365/14
Decision by national courts in the field of European Union law — ECLI:DE:OLGHE:2015:0326.4UF365.14.0A
Date: 2015-03-26
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82015DE0326(51)_ENG_SUMJURE
JURE summary
JURE summary
A Lithuanian national residing in Germany (hereinafter ‘the plaintiff’), after separation from an also Lithuanian national residing in Germany (hereinafter ‘the defendant’), applied for the transfer of sole custody of both minor illegitimate children, a daughter and a son, who were born in Lithuania before moving to Germany and who she has with the defendant.
The Amtsgericht Wiesbaden (hereinafter ‘the Court of First Instance’) dismissed the application after hearing the parties. The plaintiff was already entitled to sole custody by operation of law and therefore, transfer of custody of the child to her was not necessary. By moving to Germany, the defendant lost his joint custody as the custody arrangements under Article 16(1) of the Hague Convention (1) are governed by German law, which does not provide for joint parental custody by the defendant who is not married to the plaintiff.
By means of a complaint, the plaintiff first sought a declaration that she was entitled to sole custody of both children. Now that the son has moved to the defendant, she has reached a settlement with the defendant under which the plaintiff is to have sole custody of the daughter and the defendant sole custody of the son. They subsequently applied for the transfer of custody accordingly.
The Oberlandesgericht Frankfurt (hereinafter ‘the Court of Appeal’) approved the transfer of custody in accordance with the amended admissible appeal.
After the parents agreed on the custody of the children, the custody must be settled in accordance with this agreement.
Although, in accordance with Article 16(1) of the Hague Convention, the mother would have sole custody of both children, the Court of Appeal considers that the article should be interpreted in such a way that its entry into force does not lead to the cessation of a violent relationship previously recognised by a Contracting State under Article 3 of the Hague Convention on the Protection of Minors (2) and thus to a change of status.
The Court of Appeal admitted the appeal on points of law because of the fundamental importance of the question whether the cooperative care of the defendant under Lithuanian law, which is also recognised in Germany pursuant to Article 3 of the Hague Convention on the Protection of Minors, ceased to exist under Lithuanian law when the Hague Convention entered into force.
(1) Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement, and cooperation in respect of parental responsibility and measures for the protection of children.
(2) Convention of 1961 Concerning the Powers of Authorities and the Law Applicable in Respect of the Protection of Infants of 5 October 1961.