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Article Germany: Federal Administrative Court Clarifies Definition of 'Single Parent'

In a decision published on March 21, 2024, the German Federal Administrative Court (Bundesverwaltungsgericht, BVerwG) held that a parent must assume at least 60% of the care of the child to be considered a “single parent” within the meaning of the Child Support Advancements Act (Unterhaltsvorschussgesetz, UhVorschG). Advance child support is paid to single parents if the other parent never pays or does not regularly pay child support. The court vacated the judgment of the Higher Administrative Court of Münster and remanded the case back to the lower court for a new decision.

Facts of the Case

The plaintiff is the mother of seven-year-old twin girls. In February 2020, she applied for advance child support according to the Child Support Advancements Act because the children were living with her and their father was not paying any child support. (BVerwG decision, para. 2.) In order to receive payments under the Child Support Advancements Act, a child must

  • be under 18 years old;
  • live with one parent, who is either single, widowed, or divorced, or permanently separated from their spouse or life partner;
  • not receive child support payments or not receive them regularly. (UhVorschG, § 1.)

The mother’s application and subsequent objection were both denied because the defendant stated that the children were not “living with her” within the meaning of the act. According to the custody agreement, the children stay with their father every 14 days from Wednesday afternoon to Monday morning. He takes care of them during that time and additionally took care of them during a hospital stay of the mother for the birth of their third child. Her lawsuit and subsequent appeal were both unsuccessful. The appeals court held that the mother could not be considered a “single parent” due to the custody agreement with the father of the children. She submitted a further appeal on questions of law only to the Federal Administrative Court alleging, in particular, that the custody agreement should not have any bearing because it does not reflect how the care of the children is actually practiced. (BVerwG decision, at 2, 3.)

Decision

The Federal Administrative Court held in favor of the plaintiff, stating that the Higher Administrative Court had based its decision on an incorrect legal standard. Granting advance child support in cases of joint care arrangements requires that the major part of the care, meaning more than 60%, is assumed by the parent who applies for an advance. Measuring the individual childcare shares of the parents is done by looking at the times of actual care and not by weighing or qualifying the individuals’ shares regarding their beneficial effect on the other parent. The court ruled that the shares must be identified for a longer period of time and not monthly. (Para. 10.)

It further held that additional details must be taken into account to determine the respective childcare shares, such as where the child is staying at the beginning of the day. Times that third parties, including neighbors, grandparents, or daycares, take care of the child are attributed to the parent who is assigned care of the child in accordance with the childcare agreement. If the parent obligated to pay child support takes care of the child during school breaks, they could potentially relieve the parent who generally takes care of the child. On the other hand, taking care of the child in singular unscheduled situations does not change the overall care situation, in the opinion of the court. (Para. 17.)

Jenny Gesley, Foreign Law Specialist
April 8, 2024

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Chicago citation style:

Gesley, Jenny. Germany: Federal Administrative Court Clarifies Definition of 'Single Parent'. 2024. Web Page. https://www.loc.gov/item/global-legal-monitor/2024-04-07/germany-federal-administrative-court-clarifies-definition-of-single-parent/.

APA citation style:

Gesley, J. (2024) Germany: Federal Administrative Court Clarifies Definition of 'Single Parent'. [Web Page] Retrieved from the Library of Congress, https://www.loc.gov/item/global-legal-monitor/2024-04-07/germany-federal-administrative-court-clarifies-definition-of-single-parent/.

MLA citation style:

Gesley, Jenny. Germany: Federal Administrative Court Clarifies Definition of 'Single Parent'. 2024. Web Page. Retrieved from the Library of Congress, <www.loc.gov/item/global-legal-monitor/2024-04-07/germany-federal-administrative-court-clarifies-definition-of-single-parent/>.