Child welfare risks in separation conflicts

Divorce, custody, maintenance and visiting rights disputes can lead to considerable stress and endanger the welfare of children. This is shown by the often years-long proceedings at the guardianship court, but also by the case work of OSKJ and other advice centers. Child custody law offers no effective means of protecting affected children, especially in highly contentious divorce proceedings. The introduction of joint custody as a rule in 2015 has not changed this. The aim of the reform at the time, to strengthen parental cooperation in the event of separation or divorce in order to protect the best interests of the child, does not work in the case of highly contentious separations and divorces. On the contrary, in these cases the risks to the child are greater and more serious.

The expert committee under the Istanbul Convention GREVIO has established in various countries that existing conflicts do not end after a separation or divorce, but can even intensify. Judicial contact and custody arrangements can exacerbate this if they are made without sufficient consideration of the children's safety needs. The UN Committee on the Rights of the Child emphasizes in its General Comments that separation or divorce situations can be traumatizing for children, especially when they are confronted with conflict or violence. The Committee therefore calls for such situations to be recognized as forms of violence against children and treated accordingly.

Since 2019, the OSKJ has convened six inter-agency and inter-organizational "round tables on custody" to discuss possible solutions. In 2021, the working group on custody emerged from the round table under the leadership of the OSKJ. The working group, made up of official and private experts, drew up various recommendations to improve the situation. In particular, it saw the need for mandatory parental counseling in the run-up to judicial separation or divorce and, if necessary, mandatory parental counseling during the divorce proceedings. The working group also recommended the introduction of a child guardianship service, which can be used by the Children and Youth Service in particularly stressful proceedings to represent the interests of the child.

At the end of 2023, the working group suggested to the Minister of Justice that the recommendations of the working group should also be included in the revision of the law as part of the introduction of marriage for all and offered its support. In the reporting year, there was no political will to implement the recommendations of the working group on custody. Their demands remain pending.

 

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