Do we both have to go to the Jugendamt at the same time?
No. § 1626d Abs. 1 BGB merely provides that “Sorgeerklärungen (declarations of parental custody) and consents … must be officially recorded” – this is a form requirement, not a duty to attend. Each parent makes their own declaration, and both can do this separately: at different times and at different Jugendamt offices, which is especially helpful when the parents do not live in the same place. Joint custody arises as soon as both declarations are validly made. Attending together is more convenient, because everything is dealt with in one appointment – but it is not necessary.
Is paternity acknowledgement not enough?
No, and this is the misunderstanding with the most serious consequences in this area. Paternity acknowledgement establishes legal descent: maintenance obligations, the law of succession and the name entered as father in the Geburtsurkunde (birth certificate) follow from it. Parental custody does not arise from this. Under § 1626a BGB, unmarried parents have joint custody only if they make Sorgeerklärungen (declarations of parental custody), marry, or the family court transfers it to them; “otherwise, the mother has parental custody”. Both declarations are often recorded at the same appointment – which is why many people believe it is one declaration. Ask explicitly what you have signed.
Can we settle this before the birth?
Yes. § 1626b Abs. 1 BGB says it in so many words: “The Sorgeerklärung (declaration of parental custody) can already be made before the birth of the child.” The same applies to paternity acknowledgement. In practice this is often the better time: you have more time, appointments are easier to get, and you do not have to deal with it among everything else in the first weeks with a newborn. Custody then takes effect with the birth. Bring the Mutterpass (maternity record book) or details of the expected date.
What does the Sorgeerklärung cost?
Nothing at all at the Jugendamt – recording the Sorgeerklärung (declaration of parental custody) is just as free of charge as recording paternity acknowledgement. A notary may record the same declaration, but then charges under the GNotKG; the amount depends on the Geschäftswert. In this case, do not look for a cheaper notary: notaries are legally obliged to charge the prescribed fees and may not reduce them – all of them charge the same for the same recording. Anyone who wants to save money should therefore go to the Jugendamt.
What happens if the mother does not agree?
Then the only path left is through the family court. Under § 1626a Abs. 2 BGB, the court grants joint parental custody on the application of one parent, and in doing so works with a presumption in favour of joint custody: if the other parent puts forward no reasons against it, and none are otherwise apparent, joint custody is assumed. How this turns out in a specific case, however, depends on the circumstances – the child’s age, the care provided so far, and the parents’ ability to communicate. A note that applies to this whole entity: a great deal here depends on the assessment of the individual case – on the specific family situation, the age and wishes of the child, the professional assessment, and the practice of the particular Jugendamt. Where this page gives no fixed deadline or figure, that is stated deliberately – an invented figure would be more harmful here than an honest answer, because decisions about children are made on that basis.
Can I make the Sorgeerklärung subject to a time limit or conditions?
No, and attempting to do so makes it invalid. § 1626b Abs. 2 BGB is unambiguous: “A Sorgeerklärung (declaration of parental custody) made subject to a condition or a time limit is invalid.” Wording such as “for as long as we live together” or “for two years for now” does not therefore lead to a limited custody, but to none at all – and this usually only becomes apparent when you try to rely on it. Under subsection 3, the declaration is also invalid to the extent that a court has already decided on parental custody.
Can we later reverse joint custody?
Not by a declaration of your own. Once joint custody has validly arisen, it cannot be ended by revocation – for that, a decision of the family court is needed, which, on the application of one parent, transfers custody wholly or partly to one parent alone. The standard applied is the best interests of the child, not the parents’ wishes. This is a deliberate difference from how it arises: joint custody is easy to create and hard to dissolve, because it concerns a legal position of the child. Seek advice before making such an application.
Where is the Sorgeerklärung registered?
The recording body notifies the competent Jugendamt of the declaration without delay under § 1626d Abs. 2 BGB. However, there is no publicly accessible custody register – nobody can look up from outside who holds custody. In practice, this means: keep the certified execution copies (Ausfertigungen) and take them with you whenever you need to prove that you hold custody. This is asked for more often than you might expect: at Kita and school registrations, at hospitals, when travelling abroad, and for banking matters for the child. The mother can obtain a Negativbescheinigung (negative certificate) from the Jugendamt if she needs to prove that no joint custody exists.
