German family law, shared parenting, and conflict with European and UN law

North Americans at the International Conference on Shared Parenting 2017 tended to be sentimental. Presenters sometimes showed maudlin videos of fathers playing with kids. Therapists and psychologists would talk about the complex emotions that centered around a desire to win sole custody of kids, never mentioning that being the winner parent was more profitable than being a shared parent (see an example from our Massachusetts chapter:

if each parent earns $125,000 per year, for example, child support would be $0 in a 50/50 arrangement, $10,000 per year in a 60/40 arrangement. $20,000 per year in a 67/33 custody arrangement, and $30,000 per year or more in a 100/0 arrangement (discretionary with the judge). Over a 23-year period, therefore, the parent who earns $125,000 per year and has roughly the same expenses (a dedicated bedroom) regardless of the timeshare can collect anywhere between $0 and $690,000 tax-free depending on the outcome of the custody fight

).

Into this Kumbaya-singing party walked Professor Dr. Hildegund Sünderhauf, a researcher from Nuremberg: “I used to be a divorce litigator, but I didn’t want to be a rental weapon against the other parent.” She explained that she’d been kicked out of the German Association of Women Lawyers due to her work on shared parenting. Why didn’t they like it? “The aim of the women’s movement has shifted from equality to mothers as owners of children getting paid as much as possible for the purpose of enjoying their freedom.” (see the feminism section of the Rationale chapter for a North American view)

Prof. Dr. Sünderhauf gave us some statistics: 91 percent of Germany’s “single parents” are women. 95 percent of separated German parents share legal custody while about 15 percent of them have a 50/50 care arrangement for children, “a big shift” from just a few years ago. (see our interview with a German litigator) As in a lot of U.S. states, German mothers can block shared parenting and win primary parent status by asserting the existing of conflict. Simply appearing in court without a packaged settlement shows a judge that there is conflict and that shared parenting could therefore be inappropriate.

Prof. Dr. Sünderhauf noted that the “mom wins” aspect of German law is now likely in conflict with EU law, notably the European Convention on Human Rights, articles 8, 14 (see also Protocol 7, Article 5, in which “Spouses shall enjoy equality of rights and responsibilities … in their relations with their children, as to marriage, during marriage and in the event of its dissolution”). The “unless she is too busy smoking crack, it is always in the best interests of children to be with mom” practical outcomes of German courts is in conflict with the Council of Europe Resolution 2079, which made a non-binding recommendation that a “shared residence principle” be adopted by EU states. (In the meantime, what happens to the child of a divorce or separation will be completely different from one EU country to another, but purportedly the child and the parents have the same “rights” in all of these places. Is the EU diluting the term “right” to the point that it is meaningless?)

At a coffee break I asked Prof. Dr. Sünderhauf if Germans could actually be motivated by the cash, given that the numbers were so small compared to most U.S. states’ guidelines. It wasn’t possible to become a middle-income spender by having sex with a high-income earner, as would be straightforward in many U.S. states, was it? (In retrospect, this was a dumb question because the research on Danish men and women shows dramatic responses to child support orders that are similar in financial scale to Germany’s.) She pointed out that wage incomes are a lot lower in Germany than in the U.S. (countries ranked by GDP per capita). When you consider child support from the father plus subsidies for single moms and parents in general from the state, that wage income is taxed, that child support and the various subsidies are tax-free, and that it is possible for a woman to run a portfolio of cash-yielding children (rather than just one), the possibility of collecting maximum dollars through the family law system begins to look more exciting.

[Of course, if Germans were exclusively motivated by cash and fully aware of U.S. law, you’d expect them to fly over to Boston, New York, and Los Angeles to get pregnant with American co-parents and then return to Germany to collect at U.S. rates. (see the “American Child Support Profits Without an American Child” section of “Child Support Litigation without a Marriage”).]

It will be interesting to see how the Europeans resolve these conflicts. In the U.S., the Supreme Court has ruled that states can dispose of children, defendant spouses, etc. more or less as they wish. A child who loses a parent hasn’t been deprived of a “right” under federal law or the Constitution. A parent who loses 110 percent of income to child support and/or alimony can borrow from a relative or go to prison. Even if it turns out that 100 percent of the losers in a state happen to be of one gender, law professors say that isn’t a problem under federal law. But the Europeans can’t seem to resist making grand and vague pronouncements that are supposed to apply to their diverse group of member states (so diverse that often parenting time outcomes are radically different from region to region within an EU country!).