Right to determine residence
The right to determine the place of residence is the sub-area of personal care that includes determining the place of residence , habitual residence or actual place of residence.
Germany
Minors
In Germany, the basis is § 1627 BGB , which regulates decisions in matters relating to the daily life of a minor who is under parental custody or guardianship .
A minor is usually under the parental custody of his two parents or one (sole custodian) parent. If the parents are not entitled to parental custody (for example, withdrawal according to § 1666 BGB, rest according to § 1673 , § 1674 BGB), this is exercised by a guardian , for whom the same applies as for the parents according to § 1800 BGB. The same applies to a supplementary carer according to § 1909 , § 1915 BGB, provided that the right to determine the place of residence has been assigned by a court to this group of tasks.
Parental care is divided into the areas of personal care and property care. A sub-area of personal care is the right to determine the residence of the minor (see the list in § 1631 Paragraph 1 BGB). The right of the custodian to determine how the minor interacts with third parties is closely related to the residence regulations ( Section 1632 (2) BGB). This contact with third parties does not affect the child's statutory rights of contact with both parents or both parents with the child; there is no decision-making power based on the right to determine residence. The residence determination is not so much that the parents or the parent with no family court approval a custodial accommodation likely cause of the minor ( § 1631b BGB).
In the event of separation from parents, they continue to have the right to determine the place of residence. They must therefore decide together about where their children should live in the future. If they come to an agreement, for example about caring for the children in the residence model or in the alternate model , determine the children's stay in this way together and retain the joint right to determine the residence.
However, if they can not come to an agreement , possibly with the help of the youth welfare office , the family court can assign the sole right of residence to one of the two. This parent then regularly takes the children into their own care. The other parent retains his or her right to have contact with the children, completely regardless of the decision on residence; the other parent cannot unilaterally decide on this. It also does not interfere with other areas of custody (e.g. in school or medical matters); it remains communal.
The regulation of § 1687 BGB regulates the decision-making powers of the parents in case of separation of the parents. According to this, the parent with whom the child lives - be it on the basis of a joint decision, or on the basis of sole right to determine residence - can decide on all matters of daily life alone.
Joint custody only has an effect in matters the regulation of which is of considerable importance for the child. These include, for example, changing schools, retraining, choosing a career, changing the child to a home or boarding school (an aspect of the right to determine residence), baptism, serious medical interventions, accepting an inheritance and traveling with small children in unfamiliar cultures on flights lasting several hours. On the other hand, matters of daily life include everyday school life, registration for private lessons or a sports club, food issues, television consumption, clothing, dealing with friends, attending sports or cultural events, ordinary medical care, pocket money, administration of usual monetary gifts from relatives, consent in accordance with Section 110 BGB (Acquisition of property through the use of pocket money) and all other frequently occurring situations that require a custody decision, but whose effects on the development of the child can be changed again without any effort.
In the same way, the other parent with access rights also decides, as long as the child is with him, for example on weekends or during vacation, in matters of actual care. This includes, among other things, decisions about nutrition, bed times, visits to the doctor in the event of acute illnesses in which the other parent cannot be reached, visits to and from friends or relatives, etc. during contact hours.
This ensures that the parents have to decide jointly in the case of serious and irreparable decisions, whereas the parent present has the right to decide alone in the case of ordinary and recurring decisions.
If the parents separate, the other parent, with whom the child does not usually reside , can assert a right of participation in proceedings under public law , insofar as he maintains contact with the child or otherwise the parental right from Article 6, Paragraph 2 of the Basic Law wants to assert. See § 12 SGB X or § 13 VwVfG .
For restrictions on the right to determine residence, see also:
- parental custody - obligation of custody
- Right of contact ( § 1626 Paragraph 3 BGB)
- Right to cease and desist from disturbances and impairments in the family relationship, etc., for example in the context of the right of access ( Section 1684 (2) BGB)
- Duty to mutual assistance and consideration ( § 1618a BGB)
- Consideration of the best interests of the child (e.g. in the case of court decisions: § 1697a BGB)
Adult / care
For adults under legal supervision , the task of the supervisor often includes determining the place of residence. According to the registration laws of the federal states, the supervisor is then obliged to register, de-register and change registrations with the police (residents' registration office). He concludes rental contracts for the supervised person and terminates them in accordance with Section 1907 of the German Civil Code. To terminate a tenancy, he must obtain the approval of the supervisory court. The arranging of custodial placements according to Section 1906 of the German Civil Code (BGB) also presupposes the responsibility of the carer in the residence regulations. The Hamm Court presented on the occasion of a claim for damages firmly against a supervisor that the task group of health care for an accommodation is not sufficient.
