Ilse Falk (CDU/CSU): Not merely since the ratification by the Cabinet of the present proposed reform of parenting rights does this topic of the custody find itself at the center of discussion – although the ratification has once again brought it to the forefront. Whether joint custody or single custody, whetheronly with the express declaration on the part of both parents, or a continuation of the parenting rights in accordance with Article 6 of the BGB, whether based on a petition – this is where opinions differ.

I am not speaking here of the parental custody of children born out of wedlock – this is an inarguable topic – but rather of the custody question after divorce. The proposed legislation is based on the assumption that neither the right nor the responsibility of the parents to jointly care for their child or children are terminated by a divorce, and therefore continues to view these as given. Any other form of custody is to be petitioned and decided on by the family courts. Behind this formulation stands the no doubt correct perception that both parents are of great importance for the child's welfare.

Of course, as a family-values party, we do not simply reject this view. We do, however, formulate it somewhat differently, inasmuch as we include an often-voiced, practical appeal when we say: Joint custody can best be provided for children if – and this we feel is essential– both parents desire this and make their desire clear by means of a joint declaration.

Current legislation – as it affects both legitimate children and those born out of wedlock – primarily regulates the relationship of the parents to one another, and does so in a manner that is essentially not dependent on whether the parents are capable of giving their consent or not, and that above all seeks to find the optimum solution from the perspective of the children. The decision regarding custody of legitimate children is made at the very peak of the conflict between parents. The division of housing and household goods, regulating joint property, and alimony and support payments, probably represents the worst possible framework within which to make a decision concerning the welfare and the future of the child. In this regard, the decision to remove the determination regarding custody from the so-called forced association with the divorce decree can only be welcomed.

The attempt on the part of the proposed legislation to avoid routine decisions – in which, apparently, other custody models are granted equal rights – and to thus prevent parental conflicts regarding the child is, however, unsatisfactory to the extent that this eliminates any reason to reflect on the arrangement of parental custody. In fact, it is conceivable that the question of whether minor children even exist might not arise at all during divorce proceedings.

Conflicts that inevitably arise from the altered family constellation after a divorce may therefore possibly be postponed indefinitely or result in a state of continuous discord regarding matters concerning the child. Neither the welfare nor the rights of the child are served by this.

We therefore commit ourselves to a more precise definition of the legislation to ensure that the decision regarding custody does not become subject to a certain degree of automation, but instead is based on a considered decision on the part of the parents. Parental responsibility and support begin with the birth of a child and, unlike a lease agreement, are irrevocable. For this reason, they cannot be regulated and made to fit a mold. The decision as to whether joint custody always represents the best solution for a satisfactory parent/child relationship must first be addressed by the parents among themselves. It should then be respected by the court, unless substantial reasons speak against it. To the extent that the parents are unable to reach agreement, a qualified consultation can offer mediation and lead to a decision oriented to the welfare of the child.

The proposed legislation therefore provides that, at an early stage of the divorce proceedings, the Family Court indicates the availability of counseling offered by the Youth Welfare Department or private youth services organizations. In this regard, these discussions will need to examine the extent to which the obligations and opportunities provided by the KJHG must be clarified and strengthened.

Every debate and discussion has made it eminently clear, precisely how valuable this counseling activity on the part of the Youth Welfare Departments is for both the parents and the Family Courts. Some judges will not even render a verdict until they have seen the opinion of the Youth Welfare Department. This therefore provides an important point at which the consensual capability of the parents can be strengthened. This is the only way in which an enduring parent/child relationship can be promoted; one that leads neither to constant arguments concerning day-to-day decisions, nor permanently excludes one parent.

Precisely because one cannot simply go on as if nothing has changed after a divorce, there must come a point at which the parents – regardless of their relationship towards each other -- can reflect on the future life of their child. We therefore imagine that, while the material/legal aspects of the proposed legislation remain unchanged, the civil process rules will be modified to ensure that they make reference to the fact that the direct future of the children will be discussed in conjunction with the proceedings. This means that, as the proposed legislation foresees, the "decision link" would be severed, the "negotiation link" would, however, remain.

The demand expressed by all sides to establish a custody plan does, in our opinion however, go far beyond the goal of determining the suitability of parents to care for children. Provoking the conflict between parents through detailed questions that are undoubtedly subject to continuous alteration over time makes no sense and is counterproductive. The debate about, and the search on the part of parents for solutions to decisions of vital importance to the child cannot be replaced for all time by the finality of the written decision.

Let us not delude ourselves. The new parenting rights cannot legislate child welfare, they can only create an awareness that parental responsibility cannot be revoked. This applies equally to those who live together, who are married or not, as well as those who have separated. Any discrimination in the public mind with regard to both joint and individual custody will, at best, result in a polarization of the sides, while contributing nothing to the solution of even a single conflict. The increasing number of court decisions handed down in individual judicial districts and providing for joint custody after the divorce, provides ample proof that parents -- even in an extremely difficult personal situation -- are fully able to reflect upon the future of their child and to defend their decision to assume joint responsibility for raising their child before the court. This positive development should lead to a recognition in the courts and in all other instances touching on family matters that only declarations consciously made by the parents serve the child's welfare, and not one or the other "routine case" model.