The rest of the nursery rhyme — "… but being one is hard" — has become a motto for legal conversations about family law. It is surprising how often a separated father of small children, on our couch in a first meeting, thinks the law provides him with "nothing". The truth, frankly, is more nuanced. German family law has undergone a quiet transformation over the last twenty years. Anyone who remembers a "father has to pay, mother has to care" paradigm from their parents' days has missed a great deal.
Since 1998 separated fathers have, through joint legal custody, full participation in the decisions of their children's lives — from school choices to medical decisions to religious upbringing. This is the case for married fathers, and since the 2013 reform also for unmarried fathers who apply for joint custody. The days in which the word "sorgerecht" (custody) meant in practice a short note on the separation agreement are over. They are over because, in retrospect, the experience of having a strong, present, decision-capable father is now seen as a good thing for a child — regardless of how the child's parents have got on.
Access rights have also changed. The standard pattern of "every second weekend and half the holidays" that still shapes many people's mental model is, in fact, rare in contemporary courts. The emerging default — especially for younger children — is an access rhythm that comes closer to "parenting with two homes" than to "visitor rights". Depending on the distance between households and the age of the children, the court today often structures an agreement in which both parents have at least a third of the time each. In some cases it is a full fifty-fifty.
That has consequences for child maintenance, too. The more time the father actually spends with the child, the smaller the monetary share that needs to balance the situation. Conversely, the more time the child is with the mother, the higher the monetary balancing act. What the law wants to avoid, among other things, is the situation in which a parent who takes a genuine share of the day-to-day care also has to pay as if they did not. That would incentivise absence, which is the opposite of the idea.
The typical first-consultation situation is therefore not "what are my rights" but "what do we want, and how do we make that workable". The legal answer for that question is wide. The mother who wants to move ninety kilometres away will need the other parent's consent, or a court decision, if the move would substantially change the access pattern. The father who wants his son to join his football club cannot be overruled by the mother if the father has joint custody and the activity is reasonable.
None of this means that law alone can fix a family separation. What it means is that the default of the law, today, is that two parents remain parents. The old line from the rhyme was never really about custody; it was a warning about the labour of actually being present. That labour, the law politely reminds us, is expected from both.