Friday, October 26, 2018
My first close look at filial support law in Germany arose in 2015, when I met a German-born, naturalized U.S. citizen living in Pennsylvania who had received a series of demand letters from Germany authorities asking her to submit detailed financial information for the authorities to analyze in order to determine how much she would be compelled to pay towards care for her biological father in German. Her father had become seriously ill and did not have inadequate financial resources of his own. As I've come to learn, the name for Germany's applicable legal theory is elternunterhalt, which translates into English as "parental maintenance."
Since 2015, I've heard from other adult children living in the U.S., but also in Canada and England, about additional cross-border claims originating in Germany. They write in hopes of getting objective information and to share their own stories, which I appreciate. In some instances, such as the first case I saw in Pennsylvania, a statutory defense becomes relevant because of past "serious misconduct" on the part of the indigent parent towards the child. The misconduct has to be more than mere alienation or gaps in communication. Sometimes misconduct such as abuse or neglect is the very reason the child left Germany, searching for a safer place.
Most of the adult children who reach out to me report they had never heard of elternunterhalt. Their years of estrangement are often not just from the parent but from the country of their birth. Even those who still have a relationship with the parent in Germany often learn of the potential support obligation only after their parent is admitted to a nursing home or other form of care. They face unexpected demands for foreign payments, while they are often still looking to fund college for children or their own retirement needs.
National German authorities began to mandate enforcement of elternunterhalt in 2010 in response to increasing public welfare costs for their "boomer" generation of aging citizens. Enforcement seems to have been phased in slowly among the 16 states in the country. I've read news stories from Germany about confusion and anger in entirely domestic cases.
A claim typically begins with letters from a social welfare agency in the area where the needy parent is living. The first letters usually do not state the amount of any requested maintenance payment, but enclose forms that seek detailed, documented information about the "obligated child's" income and certain personal expenses or obligations (such as care for minor children). The authorities also seeks information about any marital property and for income for any spouse of "life partner."
Whether or not the information is supplied, at some point in a wholly domestic German case the social welfare office may initiate a request for a specific amount of back pay as well as current "maintenance." Such a request cannot be enforced unless the child either agrees to pay or a court of law decrees that payment must be made. The latter requires a formal suit to be initiated by the agency and litigated in the family divisions of the German courts. The amount of any compelled payment is determined by a host of factors, including the amount of the parent's pension, savings, and any long-term care insurance, and the child's own financial circumstances.
Cross border cases have been pursued within the EU with some reported results. As for parental maintenance claims presented to U.S. children, enforceability is less clear. According to some of the letters sent by German authorities, Germany takes the position that a German court ruling in a cross border elternunterhalt claim can be enforced in the United States under "international law." The letters do not explain what legal authorities are the basis for such enforcement.
The Hague Convention on International Recovery of Child Support and Other Forms of Family Maintenance was approved by the European Union, thereby affecting Germany, in 2014. The treaty is mostly directed to the mechanics of international child support claims and is built on past international agreements on child support; however the treaty also provides that the Convention shall apply to any contracting state that has declared that it will extend the application "in whole or in part" to "any maintenance obligation arising from a family relationship, parentage, marriage or affinity, including in particular obligations in respect of vulnerable persons." See Article 2(3).
The U.S. became a formal contracting party to the child support provisions in this Hague Convention in January 2017. It does not, however, appear to have ratified wider application to filial support or parental maintenance claims. That leaves a question -- one that students in my classes sometimes get to address -- about whether other U.S. legal principles, such as the principle of international comity, would permit cross-border enforcement of a parental maintenance claim.
The most immediate impact of German elternunterhalt claims is probably practical rather than legal. Where a tentative rapprochement has begun among previously estranged family members, it seems likely that a government demand for financial contribution could be shattering. Where the personal relationship was intact, but perhaps distant, a reluctant child may now feel the need to rethink whether even to visit the ailing parent in Germany. Further, if siblings are involved and some are still in Germany, the "foreign" brother or sister may face additional pressure from inside the family.
Recently a naturalized U.S. citizen who is receiving German demand letters shared with me a detailed website (in German) for a German law firm that handles elternunterhalt claims. The website demonstrates the potential scope of this topic, reporting that the firm has already handled more than 400 cases. It also provides brief summaries from public court decisions. The firm's website also links to an informational video prepared by the German Bar Association (one of the firm's lawyers appears in the video), plus a tool described as useful for making preliminary calculations on payments. I don't know any of the lawyers at this website, but the history of the law and the links provided seem relevant.
The firm's website also offers a practical warning: "Many . . . believe that the maintenance requirements of the social welfare office, because they come from a public authority, will . . . be right. This is -- unfortunately -- not the case." In other words, consulting with a knowledgeable practicing attorney often appropriate.
For those who speak and read German, or have a good internet translation tool, I'm seeing other interesting resources on the internet. Use the word "elternunterhalt" in your search. Here, here, and here are a few more places to start.