Assistance for minors

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The assistance for underage children ( § 1712 ff. BGB) is a special form of legal representation of a child. It was introduced on July 1, 1998 within the framework of the reform of the law on parenthood with the assistance law and since then has replaced the guardianship of the youth welfare office for illegitimate children and the assistance of old law, which is primarily aimed at advice. Assistance is a voluntary offer of help for parents who have sole custody (or who actually have sole custody). The assistance comprises two possible areas of responsibility: the determination of paternity and the assertion of maintenance claims as well as the disposal of these claims.

Difference to the official guardianship

In contrast to the official guardianship , which came into effect by law until June 30, 1998 when a child was born out of wedlock (unless the mother's guardianship occurred due to the minority of the mother ), the guardianship is a voluntary service. The scope of duties of the deputy are limited compared to those of the previous guardianship; for example, the official custody still included the regulation of inheritance and compulsory portion rights to which the child is entitled in the event of the father's death. There is also no longer any distinction between legitimate and illegitimate children. Since the legal custody of the mother has restricted, there was an unnecessary encroachment on parental rights in a large number of cases. However, the assistance does not lead to a restriction of parental custody. The guardian and the parent can (except in legal proceedings) act together with legal effect.

Beginning of assistance

The assistance comes about upon written application of a parent. The request can from alone custody will be charged to the parent or (in the case of joint custody) of the parent with whom the child lives. A guardian named by the parents is also entitled to apply (cf. § 1713 BGB). Application is to be understood as non-technical here. The application does not result in an examination or a decision. Rather, the assistance comes directly to the youth welfare office when the application is received. The adviser is then (in addition to the parent making the application) the child's legal representative in the two areas of responsibility mentioned. The parent can also request assistance for just one of the two areas of responsibility. For example, a mother can decide that the guardian should only be used to establish paternity and not regulate the child's maintenance claims. It is also possible to apply for assistance before the child is born. The assistance occurs regardless of the nationality of a child, but the child must have his or her habitual residence in Germany.

Youth Welfare Office or clubs as support

In principle, the youth welfare office provides assistance . The youth welfare office then assigns an employee to perform the tasks ( § 55 , § 56 SGB ​​VIII). In some federal states, the management of the deputy may also be transferred to an association with legal capacity (e.g. guardianship associations) if the parent agrees to the transfer. This is possible, for example, in Bavaria, Berlin, Mecklenburg-Western Pomerania, North Rhine-Westphalia, Saxony and Saxony-Anhalt. The assistance is free for the parent.

Duties of the determination of paternity

Provided that paternity is not officially stated , the assistance shall be nominated by the mother as the father man for voluntary acknowledgment of paternity (before a notary of the youth office, registry office or a notary public (see. § 59 SGB VIII)) require (see. § 1594 et seq. BGB). The acknowledgment of paternity only becomes effective with the consent of the mother. If the mother or father is still a minor or incapable of contracting, the consent of the legal representative is also required. If there is no voluntary recognition, the youth welfare office can conduct a paternity determination procedure at the family court as an adviser (§ 1600 d BGB, § 169 FamFG). Here, a scientific determination of paternity is regularly carried out by means of parentage reports / DNA analysis.

Area of ​​responsibility for claiming maintenance

The assistance can be ordered in addition or only for the assertion of maintenance (§ § 1601 ff. BGB) and at the disposal of these claims. This also includes claims to information ( § 1605 BGB) in order to be able to clarify the amount of maintenance (usually every 2 years), the title of maintenance claims (voluntary recognition of maintenance claims by means of a certificate (e.g. from the notary of the youth welfare office) or a judicial assertion), the reminder of arrears and foreclosures against the person liable for maintenance if he does not pay voluntarily, the notification of maintenance arrears in the event of the insolvency of the maintenance debtor and regular information of the parents when the maintenance is adjusted due to legal changes (minimum maintenance or child benefit) , when changing the age group (when the child turns 6, 12 or 18 years old) or when taking into account any income (e.g. training allowance) of the child.

In the context of the assistance, the single parent's claim to care maintenance (Section 1615 l, Paragraph 2 BGB) is not asserted. However, this will be discussed by the advisor. The entitlement to care maintenance can also be documented by a notary at the youth welfare office (Section 59, Paragraph 1, No. 4 of Book VIII of the Social Code).

End of assistance

The assistance ends if the applicant requests this in writing or if the legal requirements are no longer met (e.g. moving abroad, the child is of legal age). The assistance can also be partially terminated. An assistance cannot be represented by a power of attorney, e.g. B. a lawyer. The personal signature or declaration of the parent who requested the deputy is required.

Interfaces in the assistance

Child support is to be taken into account against various social benefits, so the assistance is an important support, since the assistance calculates the maintenance of the child like a lawyer for the child and, if necessary, demands it from the parent who is obliged to provide maintenance. Otherwise, if the child maintenance is not paid, the parent entitled to maintenance can apply for an advance maintenance payment ; the advance maintenance fund tries to recover the amounts paid out from the maintenance debtor. In particular in ALG2 ("Hartz 4"), the job center tries to minimize its services by claiming maintenance payments. Child support also plays a role in housing benefit / burden allowance. Thus, possibly three or four authorities (or bodies) are employed against the maintenance debtor at the same time. Here, the civil-legal maintenance usually has the highest amounts, so that the support for the child is the most sensible contact person when it comes to child maintenance. Only this person (or a lawyer) can assert the claims in favor of the child, the social service providers can only assert the transferred claims for themselves. However, a maintenance title obtained from a social security provider can be transferred to the child after the benefit has been discontinued.

The advisor also reports maintenance arrears in the event of insolvency and thus prevents forfeiture if the remaining debt is discharged.

The maintenance arrangements made also usually relax the situation between the parents after a separation or divorce (e.g. for conflict-free contact arrangements or other custody agreements).

See also

literature

  • Helga Oberloskamp: Guardianship, guardianship and assistance for minors , 3rd edition 2010, ISBN 978-3-406-58184-7

Web links

Individual evidence

  1. ↑ openJur eV: BGH, decision of 23.09.2015 - XII ZB 62/14 - openJur. Retrieved November 14, 2018 .