A mother objected to the costs decision in a visitation case. Her relationship with her own child was problematic: two years ago, when she was 11, she moved in with her father. After a final contact shortly afterwards, she refused any contact with her mother. She wanted to see her child at least every 14 days from Friday to Sunday and on two public holidays. The father also had no objection to at least an hourly initiation, but refused the youth welfare office any contact with his daughter. The matter went to court. There the child explained that he no longer wanted to have contact with his mother. She hasn’t been feeling well lately. A month after the hearing, the woman withdrew her application. The family court ordered her to pay the costs: Because of the child’s refusal, the request for access had no prospect of success. The complaint was successful.
The Karlsruhe Higher Regional Court canceled the costs against each other (decision of January 25, 2024 – 5 WF 147/23). A case of § 81 Abs. 2 FamFG, according to which the costs of the proceedings are to be borne in whole or in part by one of the parties involved, does not exist. Above all, it cannot be established that the woman’s application had no chance of success from the outset and that she had to recognize this. Even the father always assumed that some kind of contact arrangement would be found. Ultimately, his behavior in not allowing the youth welfare office to independently determine the child’s will was what provoked the legal proceedings in the first place.
The Karlsruhe judges emphasize that less contact generally does not mean that one has “lost” and therefore has to bear more costs – unlike in civil proceedings. In the contact process, the focus is on protecting the child’s best interests. Here the child declared that he did not want to have any contact with the mother, but essentially justified this with a lack of care and attention during the last period of living together. If the parents simply complied with this wish, this would not mean that the mother applying for contact would lose and the now single father would win. Rather, there is a shared parenting failure on the part of both parents if they allow the child’s existing ties to the mother to be severed.
to OLG Karlsruhe, decision of January 25, 2024 – 5 WF 147/23
Editorial team beck-aktuell, ns, February 7, 2024.
Related Links
From the beck-online database
Bruns, The development of family procedural law in 2022: costs and procedural values, NZFam 2023, 301
OLG Brandenburg, Requirements for an isolated challenge to a costs decision, NJ 2022, 552
OLG Karlsruhe, cost decision after unsuccessful paternity determination, BeckRS 2016, 4928