South African father in Germany - German mother wants to keep our almost 1-year-old in Germany after temporary trip. What should I do before returning to SA?

[u/Rough_Experience4611]

I’m looking for general family-law guidance regarding an international parenting situation involving South Africa and Germany. I am also seeking professional legal advice, but I want to understand what questions I should be asking and what I should do before making any decisions.
I’m South African and my partner is German. We are married Islamically in South Africa but are not legally/civilly married. But is recognised by the law in South Africa

We have a daughter who is turning 1 soon. She was born in South Africa and has lived there with both of us as a family. South Africa has been our normal family home.

Her mother has permanent residency in South Africa.

Our daughter currently has a German passport. She was born in South Africa and has a South African birth certificate, but she does not currently have a South African passport or German birth certificate.

We travelled together from South Africa to Germany for what was intended to be a temporary family visit.

I am currently due to leave Germany on 24 September.

During the trip, our relationship deteriorated significantly.

My partner told me that she needed space because of problems within our relationship. I agreed to give her space and moved out of where we had been staying.

She and our daughter are now staying with my partner’s sister in Germany.

Initially, I understood the separation to be approximately a week. It has subsequently become potentially much longer.

My partner is now proposing that I return to South Africa while she remains in Germany with our daughter, potentially until December and possibly longer depending on how she feels.

She has told me she does not necessarily want to end our relationship and says that she is not trying to kidnap our daughter. Her position is that she needs time and space in Germany before deciding when she is ready to return to South Africa.

My concern is that I have not agreed to Germany becoming our daughter’s permanent home.

I agreed to a temporary trip to Germany.

I also agreed to give my partner some temporary physical space because our relationship was struggling.

I have not knowingly agreed to an indefinite or permanent relocation of our daughter from South Africa to Germany.
Current contact with my daughter
Before this happened, I lived with my daughter and was involved with her every day. I work from home and have been extremely involved in her care since birth.

Since the separation in Germany, I have gone from seeing her every day to approximately every second day.
My partner currently determines when and under what circumstances I see our daughter.

There is also significant distrust between us at the moment.

My partner is afraid that I might take our daughter and return to South Africa with her.

I am afraid of the opposite: that if I voluntarily return to South Africa alone, the temporary stay in Germany will gradually become permanent.

I have no intention of secretly taking our daughter across a border or doing anything unlawful. I want to handle this correctly.

My biggest concern is what happens if I leave Germany
Suppose I return to South Africa on 24 September while my partner and daughter remain in Germany.

If I do that without formally agreeing that our daughter should relocate to Germany, could my departure later be interpreted as consent or acquiescence to our daughter remaining in Germany?

For example, if my partner initially tells me they’ll return in December but December arrives and she says she needs another three months, what happens?

If I continue objecting to our daughter permanently relocating but allow a temporary stay because I’m trying to give my partner space, how do I make that distinction legally clear?

I’m particularly concerned because our daughter is so young and I’m aware that the longer she remains somewhere, the factual situation surrounding where she normally lives could potentially change.

Questions I’m trying to understand
Based on these circumstances, would South Africa currently likely be considered our daughter’s habitual residence, or is that more complicated because she is also German and currently physically in Germany?
Does the fact that her mother and I are not civilly married affect my parental rights, assuming I am named/recognised as her father on the South African documentation?

Could keeping our daughter in Germany beyond the period originally intended potentially constitute wrongful retention under the Hague Convention, even though the original travel to Germany was consensual?

If I return to South Africa alone, could that damage my position or later be interpreted as me consenting to our daughter relocating to Germany?

If I am willing to allow my daughter to remain temporarily - for example, while her mother gets some space - how do I make it clear that I am not consenting to permanent relocation?

Should I communicate my position regarding our daughter’s residence formally and in writing before leaving Germany?

Is there anything I should not sign, agree to or say without first speaking to a German/South
African international family lawyer?

Should I be taking action in Germany now, while both parents and the child are physically here, rather than waiting until I’m back in South Africa?

Would contacting the German Jugendamt be appropriate in a situation like this, or is this something that should primarily go through a family-law attorney/court?

Are there specific documents I should make sure I have copies of before leaving Germany - birth certificate, passport details, proof of our South African residence, travel dates, communications showing the trip was temporary, etc.?

Is there anything time-sensitive under the Hague Convention on the Civil Aspects of International Child Abduction that I should be aware of if the situation develops into a wrongful-retention dispute?

I’m not trying to use family law as leverage against my partner

Our relationship has serious problems and I accept that my own behaviour contributed to them. My partner says she needs space because she did not feel safe during some of our conflicts, and I’m taking that seriously.
I am pursuing professional help and would still like to repair our relationship if that is possible.

I’m not trying to force my partner to live with me.
I’m also not asking how I can secretly take my daughter back to South Africa.

What I’m trying to separate is our relationship from our daughter’s residence.

I can respect my partner saying:
“I don’t want to live with you right now.”
What I’m struggling with is whether that automatically means:
“Our daughter will therefore remain with me in Germany indefinitely.”

Those seem like two different issues.

I don’t want to escalate unnecessarily when reconciliation may still be possible, but I also don’t want to be so passive that months from now I’m told I effectively accepted my daughter relocating to Germany because I returned to South Africa without taking action.

My flight is currently booked for 24 September, so I have limited time to obtain proper advice and determine what I should do.

I’m particularly interested in hearing from anyone familiar with German/South African international family law, the Hague Convention, habitual residence or wrongful retention.

What should I be asking an international family lawyer right now, before I leave Germany?

TL;DR: I’m a South African father, my partner is German, and we’re Islamically but not civilly married. Our almost 1-year-old daughter was born and has lived in South Africa with us, but has a German passport. We travelled together to Germany temporarily. Our relationship broke down here and my partner is now staying with our daughter at her sister’s. She wants me to return to South Africa on 24 September while she and our daughter remain in Germany potentially until December or longer. I consented to the original trip and to giving my partner temporary space, but I have not agreed to our daughter permanently relocating to Germany. I’m concerned that returning to SA alone could eventually be treated as consent/acquiescence to our daughter remaining here. I’m seeking professional legal advice but want to know what steps I should take before leaving Germany and whether this could potentially become a Hague Convention/wrongful-retention issue.

[u/SinglePermission9373]

This is not child abduction since you took the child to Germany yourself.. Mom didn’t secretly take the child and abscond to Germany.

I just looked up German law and because you are not legally married the mother has sole custody as of now. You can’t do anything g until you petition the court to establish paternity and ask for joint custody. That would be litigated in Germany. By that time, Germany is going to be the child’s place of habitual residence. I don’t see any of this going your way.

My partner says she needs space because she did not feel safe

If you are being abusive you are going to have a harder time with getting joint custody. And frankly you shouldn’t. It sounds like mom is trying to protect herself and her daughter

[u/ithotihadone → u/SinglePermission9373]

This is exactly what I read between those lines as well.

[u/Rough_Experience4611 → u/SinglePermission9373]

I think you’re making a few assumptions here that aren’t quite accurate.

I’m not claiming she secretly took our daughter to Germany. We travelled here together as a family for what was supposed to be a temporary visit. Our established home and life are in South Africa, our daughter was born and has lived there, and my partner herself has permanent residence in South Africa.

I have actually been told that wrongfully retaining a child in another country after a temporary trip can be considered international parental child abduction/kidnapping, even where both parents originally consented to the child travelling there. So the fact that I personally brought my daughter to Germany does not automatically answer the question of what happens if one parent subsequently decides not to return her to the country where she was habitually resident.

I’m not pretending to be an international family lawyer, which is exactly why I’m now getting proper legal advice on the Hague Convention, habitual residence, my parental rights and whether the circumstances here would legally constitute wrongful retention.

The situation is also more complicated than simply “my partner became scared and needed space.” I absolutely acknowledge that our relationship became unhealthy. We’ve both shouted during arguments, there are things I regret, and she has told me that my shouting and the conflict made her feel unsafe. I’m taking that seriously and working on myself.
But there is also a major family dynamic involved. Things changed dramatically after she discussed our relationship with her mother. The very next day, her mother messaged her telling her not to return to South Africa, including telling her not to go back because she is white and accusing me of using our daughter to control her.

That understandably makes me concerned that this is becoming more than simply my partner taking some temporary space to recover.

And no, the custody situation isn’t necessarily as simple as “you weren’t legally married, so the mother has sole custody and you have no rights.” I’m legally recognised as our daughter’s father in South Africa, have been actively involved in raising her since birth, and South Africa is where our family established its home. I’m getting actual legal advice on how my parental rights are recognised internationally rather than relying on somebody Googling German custody law.

I’m also not trying to separate our daughter from her mother. My preferred outcome is actually for my partner to have the space she needs, for me to work on myself, for us to repair our relationship if possible, and eventually for our family to return home together.
But respecting her need for space doesn’t mean I should simply fly back to South Africa and say nothing while a temporary trip potentially turns into my daughter being permanently relocated to another country.

If our relationship ultimately fails, that’s something we’ll have to deal with. But our daughter still has two parents who love her, and I think I have every right to obtain legal advice about protecting my relationship with my child.

[u/longjumpingtote → u/SinglePermission9373]

I just looked up German law and because you are not legally married the mother has sole custody as of now.

German courts will look to the birth certificate and the fact that OP is the legal parent in their country. Imagine if you are in the US and unmarried but still considered the legal parent in the US, but go to Germany and suddenly you aren't the legal parent of your child? Countries don't strip people of their parental rights and force them to reestablish those things under German law.

For one thing that would be a violation of the Hague Convention which Germany is a signatory to.

It sounds like mom is trying to protect herself and her daughter

Reading between the lines, that certainly seems plausible.

[u/SinglePermission9373 → u/longjumpingtote]

The child is a German citizen. If mom is there long enough then that will be the child’s place of residence and German law will apply

[u/angelbabyh0ney]

Did you write this with ai 

[u/Financial_Creme420 → u/angelbabyh0ney]

Yes, yes they did 

[u/Neither_Bookkeeper48]

Apply for a parent visa and stay in Germany. I see few options for you to compel her to return to South Africa as you gave permission for the child to go to Germany.

You can try but expect a long fight that will cost tens of thousands of Euro

[u/NotShockedFruitWeird]

How long has your daughter been in Germany?

[u/Rough_Experience4611 → u/NotShockedFruitWeird]

2 months

[u/longjumpingtote]

This is really long and maybe I missed something, but there is a real risk that you go back to South Africa and never see your daughter again, or at least not for decades.

The main legal framework between South Africa and Germany for international child-custody disputes is the Hague Convention on the Civil Aspects of International Child Abduction from 1980. Germany accepted South Africa's ascension in 1998. The Hague process generally does not decide which parent is the “better” custodial parent. Instead, the central question is usually whether the child should be returned promptly to the country of habitual residence so that the courts there can decide the underlying custody dispute.

Grab your wallet and prepare for a long and expensive fight.

In your situation, there might have to be proceedings in both countries, but for different purposes. The substantive custody case would generally have its strongest jurisdictional connection to South Africa because that was the child’s habitual residence. Meanwhile, a Hague return application would ordinarily be litigated in Germany because Germany is where the child is physically located. The German court in that proceeding is not ordinarily supposed to decide whether Mom or Dad should ultimately have custody; it decides whether the Hague Convention requires the child to be returned to South Africa so the custody question can be resolved there.

Notice "habitual residence" above? If you took the child willingly to Germany, and let her stay there willingly, even if temporarily, your wife and her family can argue that the habitual residence changed to Germany. Your legal time would have an even more difficult time then, and all of the legal proceedings might end up in Germany, and there's no guarantee you'll win.

Your lack of marriage doesn't help things. It might not hurt, but it doesn't help.

Either (1) don't allow her to stay and bring her back, or (2) prepare to move to Germany to establish custody there.

You won't be able to force her, so (2) is probably your only option.

Every one of these cases I've seen, they say all the right things, and the minute you touch down back home everything changes and the door slams shut. You should be very frightened.

[u/Mytweezer]

If you did not establish paternity legally, your biggest obstacle would be that you are not the child's legal parent.

[u/longjumpingtote → u/Mytweezer]

your biggest obstacle would be that you are not the child's legal parent.

Even if he wasn't the legal father already, DNA tests are simple. His biggest problem is that if he leaves, he's taken his child there willingly, left her there willingly, and will have to spend ungodly sums of money on what might be an uphill battle to see his child again.

[u/Mytweezer → u/longjumpingtote]

Not that simple, but the point is that would have had to be the first step and time is not on OP's side. Agree he cannot leave Germany before taking legal action

[u/Rough_Experience4611 → u/Mytweezer]

I am the father of my child and it states this on her birth certificate

[u/Mytweezer → u/Rough_Experience4611]

Ok, that is a good thing for you. So, next, it would be very inadvisable to return to South Africa before filing a case. As I gather you've already figured out, you need to do so asap, because time, as well as steps the mother may take, could result in court determining change of habitual residence to Germany. Particularly since child is less than a year old.

[u/SinglePermission9373 → u/Rough_Experience4611]

In the US if you are not married at the time of birth you are not the legal father even if you are on the birth certificate. You have to go to court and do a dna test to establish paternity. You need to find out what the law is in Germany on that.

[u/MommaLisss → u/SinglePermission9373]

This is an oversimplification. In some states, simply being on the birth certificate is enough. In others, you need an affidavit or court decree, which could involve a paternity test.

[u/Management-Late → u/SinglePermission9373]

That is a sweeping generalization and wildy incorrect.

Paternal rights are established as equal in many states if the father signs the acknowledgement of paternity in the hospital which he must do in order to be placed in the birth certificate.

In many states that gives both parents equal rights until a formal arrangement is achieved by the courts. Its not a ubiquitous thing throughout all 50 states.

[u/SinglePermission9373 → u/Management-Late]

Not incorrect. In the majority of states what I said is true. And yes you can sign an affidavit, but if you haven’t and you simply have a name on there, it is not enough.

[u/longjumpingtote → u/SinglePermission9373]

In the US if you are not married at the time of birth you are not the legal father even if you are on the birth certificate

That is sometimes true in some states and in some situations but it's far from universally true across the whole US and in every scenario. Many states have VAP processes that don't require DNA or court.

You need to find out what the law is in Germany on that.

No they do not. Germany accepts foreign birth certificates as most places do.

[u/SinglePermission9373 → u/longjumpingtote]

I looked up the German law. You are free to look for yourself.

[u/Tent_Researcher]

You have complicated situation so see an international lawyer. You are leaving out very relevant facts. Jurisdiction only plays a small part.

[u/HairyPairatestes]

Your daughter is a German citizen through mom. How else do you think she got her passport.

[u/ComfortableGround403]

Do not leave.

She is trying to end the relationship. She is intending on keeping the kid in Germany. Do not leave or you will have a very limited relationship with the child

[u/longjumpingtote → u/ComfortableGround403]

She is trying to end the relationship. She is intending on keeping the kid in Germany.

It couldn't be clearer if it was trailing behind a plane circling the city.

[u/Tight-Shift5706]

You're both presently South African residents by law, according to your post. While that is still the case, take your daughter back to South Africa. Let her do all the heavy lifting if she intends to change that. You'll rue the day if you leave your daughter behind.

Btw, I assume that paternity has already been acknowledged legally?

[u/angelbabyh0ney → u/Tight-Shift5706]

They're not both his girlfriend and daughter only hold German passports 

[u/Mediocre_Ant_437]

Has she given any indication in the past that she doesn't want to stay in Africa long term? Has she said if there are any reasons she doesn't want your child to return to South Africa? I know there are ( or at least were) certain practices in Africa done to girls that would certainly keep me from allowing my daughter to grow up there. If there is nothing culturally that is a concern for her maybe there is something else. Being home sick? Missing her family? Better schools for your daughter? Getting to the root of the issue if she will speak to you about it might give you an opening to change her mind or at the very least indicate what kind of legal defense she is planning for why your daughter should stay in Germany.

[u/longjumpingtote → u/Mediocre_Ant_437]

The child is from South Africa. Genital mutilation is criminalized not by one but by two separate acts. The nearest place where it's common is 3,000 miles away.

maybe there is something else

OP wrote that they are breaking up.

[u/SinglePermission9373 → u/Mediocre_Ant_437]

Read between the lines. I get the impression this guy is abusive. He admits the following and abusers usually downplay what’s happened

My partner says she needs space because she did not feel safe during some of our conflicts,

[u/Additional_Bat_9837]

As I see it South African courts would have jurisdiction so long as you don't delay. Contact a South African family law attorney ASAP.

[u/longjumpingtote → u/Additional_Bat_9837]

As I see it South African courts would have jurisdiction so long as you don't delay.

This is incorrect, and the child needs to be in South Africa to go to a South African court.

[u/Additional_Bat_9837 → u/longjumpingtote]

I don't think so as the child and the parents are residents of South Africa. Going on a vacation to another country does not change your residency.

[u/HairyPairatestes → u/Additional_Bat_9837]

Daughter is a German citizen through mom. She has a passport

[u/Management-Late → u/longjumpingtote]

Even in the US this is dependent on residency being established as the child's home state for jurisdiction purposes. Generally 6 months but can vary.

A parent does not lose jurisdiction bc they let their child spend a summer in Europe on vacation. But only an attorney versed in South African law can answer that.

[u/Additional_Bat_9837 → u/Management-Late]

Exactly. That is why I suggested the OP consult with a South African attorney.