Can you lose child access in Germany because you made "xenophobic" comments?

Question

AnonymousNews has a claim in German that making xenophobic comments online or being involved in protests may cause you to lose access to your children.

Wer „fremdenfeindliche“ Aussagen auf Facebook tätigt oder gegen „Flüchtlingsheime“ demonstriert, könnte demnächst sein Umgangsrecht mit seinem Kind verlieren, auch wenn keine Straftat vorliegt, erklärt der Deutsche Anwaltverein.

The following English translation is from (Google Translate), so I don't know how accurate it is:

Anyone who makes "xenophobic" statements on Facebook or demonstrating against "refugee homes" could soon lose his right of access with his child, even if no criminal offense exists, the German lawyer's association.

Is this true?

Answer 1

The linked article references the article Rassismus und Kindererziehung: Droht Verlust des Umgangsrechtes?, published on 2015-09-24 in an online magazine run by the German Bar Association.

In this article, the attorney Eva Becker (President of the Family Law Community in the German Bar Association) gives her professional assessment on this topic. Naturally, other attorneys might not agree with her. Nothing in the article references an actual case or a judicial decision.

So the following is based on Becker’s opinion, as described (and partly quoted) in the article (at least as far as I understand it, not being a lawyer).

If a parent posts a xenophobic comment online, it might lead to a procedure which might result in losing child custody. It isn’t relevant if this comment is prosecutable.

The conditions under which this might happen:

• The child has to take notice of this comment (or be affected by it).
• The child’s well-being has to be endangered by the parent’s comment. The comment itself isn’t that relevant, the impact of the comment on the child is.
• If the child’s well-being is endangered, loss of custody is the last consequence. Various things might be tried before it comes to that: visitation rights might get restricted; the parent might interact with the child only accompanied with someone (e.g., an educator); the parent might not be allowed to do/say something specific, or to meet someone specific, in front of the child; the parent might lose right of access.

Becker notes that actions are typically more serious than comments/utterings. An example for such an action: a parent taking their child to a xenophobic demonstration.

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So let’s look at the quoted machine translation of the first sentence of the linked article (Umgangsrecht: Merkel-Regime will Kritik an Asylpolitik mit Kindesentzug bestrafen).

The translation seems to be mostly correct. The source doesn’t literally contain "anyone" (it only says "Who makes …"), but I guess it’s a suitable way to translate it. Also note that the translation misses the word "explains".

Are the stated claims correct (which means: does the referenced article make these claims)? Mostly yes.

• Anyone: Yes. As in: No one is excluded, it could (not: will) happen to every parent. However, the quoted sentence doesn’t mention under which conditions.

• "xenophobic" statements on Facebook or demonstrating against "refugee homes": Yes. The referenced article gives xenophobic statements and (also xenophobic!) demonstrations against refugee shelters as examples. It doesn’t specifically mention Facebook in this context, but the statements are general (i.e., it’s safe to assume that every kind of communication is meant).

• soon: No. The linked article is from 2017, the referenced article is from 2015. The referenced article doesn’t refer to anything in the future, it describes the status quo.

• lose his right of access: Yes. (The referenced article also says that he could lose the custody of the child.)

• even if no criminal offense exists: Yes. Explicitly mentioned in the referenced article.

• the German lawyer's association [explains]: Yes. I guess this is a suitable translation for Deutscher Anwaltverein (Wikipedia, as linked above, calls it German Bar Association).

Answer 2

As already mentioned in the first answer, this article refers to an article by a german laywers association (https://anwaltauskunft.de/magazin/leben/ehe-familie/1178/rassismus-und-kindererziehung-droht-verlust-des-umgangsrechtes/). The article is a comment on the existing laws, not a court decision itself.

I'll only address how your excerpt interpreted this article, I wasn't able to find any more reliable resources about actual cases like this. The closest I could find were mentions about an ex-husband still active in the Neonazi scene, where safety considerations were cited as a reason to deny the husband visiting rights for the children.

The cited article argues that the deciding factor is the welfare of the child. What matters are how the child is affected by the actions of the parent, not the statements themselves:

Das heißt: Die politische oder religiöse Gesinnung eines Elternteils hat nur dann Auswirkungen auf das Umgangsrecht mit dem Kind, wenn es dadurch gefährdet ist. Hat ein Elternteil lediglich eine kontroverse Meinung, reicht das nicht aus, um ihm das Umgangsrecht zu entziehen oder einzuschränken.

This means: the political or religious attitute of the parent only affects the right to have contact with the child, if the child is endangered by it. Having a controversial opinion is not sufficient to revoke or limit access rights.

The article gives two examples. The parent saying that they do not want refugees in their neighborhood would not be a reason to restrict their rights. The parent saying that refugees should be killed would be a reason. Attending demonstrations with extremistic content alone without the child would not be a sufficient reason, but taking the child to them might be.

The article does comment that the legality of the parent's actions are not necessarily relevant. The deciding factor is whether it presents a danger to the wellbeing of the child.

Answer 3

What the other answers fail to grasp is that the AnonymousNews article explicitly mentions court proceedings for divorced/separated parents. This means that the whole premise of the article by the Anwaltsverein (German Bar Association) is court-based custody proceedings/rulings. The article does not mention non-separated parents. It talks about what factors may influence the court's decision about who may care for the child.

The relevant term is "Umgangsrecht":

erlangt das Umgangsrecht dann praktische Bedeutung, wenn die Eltern voneinander getrennt leben und/oder das Kind weder bei der Mutter noch beim Vater lebt.

(translation:

[...] Umgangsrecht gains practical meaning (only) when the parents live separately and/or the child lives neither with the mother nor with the father.

)

The article also mentions that when the child's grandparents try to "poison" the child against one of the separated parents the court can revoke the grandparents visitation rights.

So, to summarize: the article mentions that in the context of court proceedings/custody battles the political actions/expressions of one parent - even if legal, but somehow threatening the child's wellbeing - can be used as leverage by the other parent to try to convince the court to restrict access/visit rights and/or custody. It does not mention children being torn from non-separated couples.

As a side note, Germany has had a lot of problems with child protection services not noticing the danger children are in, and leaving them for too long with their parents who then abuse them, sometimes killing them. For example, the Yağmur case.

Answer 4

A critical point overlooked by the other answers is the credibility of the primary source.

It is a magazine article based on a few quotes by a single lawyer (Eva Becker) edited by an author "vhe". The article provides no references to any court decisions or laws. That is somewhat uncommon: lawyers love to cite court decisions in blogs and articles. It may be intended for easier reading.

Despite the catchy title, the article is written towards parents who fear bad influence of ex-partners. The last paragraph titled "Wann sollten Sie einen Anwalt einschalten?" / "When should you consult a lawyer?" ends with "Hier finden Sie einen Anwalt oder eine Anwältin für Familienrecht in Ihrer Nähe." / "Here you can find a lawyer near you specialized for family law.". The entire article could be considered an advertisement.

No, the primary source cannot be considered a reliable source.

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Further, compare the primary source with what the secondary source claims:

Wer „fremdenfeindliche“ Aussagen auf Facebook tätigt oder gegen „Flüchtlingsheime“ demonstriert, könnte demnächst sein Umgangsrecht mit seinem Kind verlieren, auch wenn keine Straftat vorliegt, erklärt der Deutsche Anwaltverein.

The translation is almost good, except that I would not use an explicit "anyone", that would imply a "Jeder der ..." in the German:

Someone who makes "xenophobic" statements on Facebook or demonstrates against "refugee homes" could soon lose his right of access with his child, even if no criminal offense exists, the German lawyer's association.

The primary source discusses only extreme examples (emphasis mine):

Äußert ein Vater oder eine Mutter hingegen vor dem Kind, dass man alle Flüchtlinge am besten umbringen würde, überschreitet er damit deutlich die kritische Grenze.

Translation (emphasis mine):

However, if a father or mother expresses in front of the Child, that all refugees should best be killed, a critical line is clearly crossed.

No, '"Xenophobic" statements on Facebook' are not in front of the child. Making said extreme statement on Facebook would however be a criminal offense (Volksverhetzung). Further it only says that a critical line is clearly crossed, it does not say that this directly leads to loss of access to the child.

Edit: The secondary source cites the primary one as follows, (emphasis mine on the difference)

Spreche ein Vater oder eine Mutter hingegen vor dem Kind offen eine Drohung gegen Flüchtlinge aus, überschreite das Elternteil damit deutlich die kritische Grenze.

(traslation)

However, if a father or mother expresses an open threat against refugees in front of the Child**, a critical line is clearly crossed.

The secondary source changed a "kill all" to "an open thread". There is no indication, that the primary source changed their wording (web.archive from September 2015).

Regarding demonstration, the primary source says:

Schlimmer als Äußerungen wiegen meist Handlungen: Es ist etwas anderes, im Beisein des Kindes mit Bekannten abfällig über Asylbewerber zu sprechen, als das Kind zu fremdenfeindlichen Demonstrationen mitzunehmen. Doch auch hier zählt nicht Aktion an sich, sondern der Einfluss auf das Kind. Eine Mutter, die den Vorträgen eines sogenannten Hasspredigers beiwohnt, während das Kind in der Kita ist, und in der Zeit mit dem Kind über den Inhalt dieser Predigten kein Wort verliert, gefährdet damit noch nicht das Kindeswohl.

(translation)

Worse than utterances are usually actions: It is something else to to talk disparagingly about asylum seekers with acquaintances in the presence of the child, as to take the child to xenophobic demonstrations. But here, too, action does not count, but the influence on the child. A mother who attends the lectures of a so-called hate preacher, while the child is in the day-care center, and does not lose a word about the contents of these sermons during the time, does not endanger childhood.

No, the primary source does not claim that demonstrations can lose you access to the child.

Regarding the criminal offense, the primary source does explain that

Strafbarkeit zunächst nicht entscheidend

(translation)

Criminality is not decisive at first

But gives only examples that are not political (drug dealer, instigating the child against other family members).

The primary source does not support what the secondary source claims.

Note, the secondary source does mention one law: Paragraf 1684 Absatz 2 BGB. However, that just generally refers to the well being of the child (Wohl des Kindes).

Answer 5

The article isn't about a law or a court case, but about proposed laws and/or polical actions.

Wer „fremdenfeindliche“ Aussagen auf Facebook tätigt oder gegen „Flüchtlingsheime“ demonstriert, könnte demnächst sein Umgangsrecht mit seinem Kind verlieren, auch wenn keine Straftat vorliegt, erklärt der Deutsche Anwaltverein.

So they tell, that there may soon be the possiblity to lose the right. The political action comes from the fight against "hate speech", which is used as anglizism in german for haressement and similiar which isn't banned by current laws.

We have things like Verleumdung (defamation) Volksverhetzung (possibly german specific offence of inflaming people against minorities), Beleidigung (libel) and simliar offenses.

This does not cover some speech, which is perceived as "this should be illegal" by some people, but still counts as free speech. This is the cause for initiatives to create laws against "hate speech", which should cover these things.

Eine Personalie des Anwaltvereins weist ins linksextreme und zugleich linksrassistische Milieu. Heiko Maas Kampf gegen missliebige Meinungen wird auf immer breiterer Front ausgefochten.

This is a tendentiously way of reporting against one of the politicians, which is part of the movement, derogating the people behind the cause as extermist leftists. While they are mostly left-wing, saying this sentence isn't neutral is an euphemism.

Another interesting points are the quotes in the next paragraph for "fremdenfeindliches" (xenophobe) and "Flüchtlingsheim" (refugee home), which probably should imply something like "everyone could be called xenophob" and that refugee homes may only be a pretext.

At this point it should be enough to judge the article as very right-wing. Reading it further, it takes parts of the linked statement and tries to ridicule and/or debunk it, using phrases like Kampagne des Bundesjustizministers zur Bekämpfung unliebsamer Meinungen in den sozialen Medien (campaign of the attorney general to fight unpleasant opinions).

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to sum up: The article isn't a serious source.

There are some left-wing people, which would like to take away children from xenophobic parents, which would of course like to define where "xenophobic" starts. This is part of initiatives against "hate speech", which should create possiblity to remove a broad range of (social media) posts without court order. There are right-wing people, which see them as absolute enemy, ridicule their actions and describe them in an exaggerated and skewed way to belittle them.

Both has nothing to do with current laws and currently it seems that networks like facebook voluntary accept to work together with some initiatives like the Amadeu Antonio Stiftung (which can be described as left-wing) to avoid being required by new laws to remove the things, they will now voluntary remove. The impact of this may actually have chilling effects, but up to now there is no scandal because of it.

And there is nobody taking away the children more easily than before, even when such initiatives probably would like to have the right to do so, even in minor cases.