Constitutional complaint in family law

In family law, the constitutional complaint has a very special meaning. Since many decisions, e.g. regarding custody, can or must be renewed from time to time, the persons involved have to deal with the family courts over and over again.

However, there is often a risk that the courts will simply invoke their earlier decisions without entering into a new substantive review. Furthermore, there are only two instances in family law, the district family court (“Amtsgericht – Familiengericht”) and the higher regional court (Oberlandesgericht). The appeal to the Federal Supreme Court hardly plays a role in practice, as it would have to be allowed by the Higher Regional Court first. The control of decisions is thus very underdeveloped.

Here, a further review by the Federal Constitutional Court can be ensured. It is often enough to realize that the constitutional complaint was raised in order to be taken more seriously in court. In that regard, we have already had very good experiences with several clients.

Obviously, the fundamental right to protection of the family (Article 6 of the Basic Law) is relevant. This also includes parental rights, i.e. the right of parents to take care of their children. In this respect, virtually every custody decision constitutes an interference with the fundamental right of at least one parent.

Then the question arises whether this intervention could be justified. Justification is first and foremost the best interests of the child, with the court having to carry out a thorough examination in compliance with fundamental rights. Here you can often find starting points that make a constitutional complaint seem promising.

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