Parental Care (Germany)
Parental care is a legal term in German family law . It was introduced in Germany in 1980 with the reform of parental custody and is now mandatory. Previously, the law used the term " parental authority ". Colloquially, custody is briefly mentioned .
The details of the right of parental custody are regulated in the German Civil Code ( BGB ) in . The parental authority includes the custody and care (for the person of the child (custody) and the property of the child (assets concern) 1 para., Sentence 2 BGB). This so-called simple legal embodiment of the right of parental custody is based on the constitutionally anchored parental right of Paragraph 2, Sentence 1 of the Basic Law .
Parental authority holder
Parental responsibility is held by the parents. With regard to the exercise of parental custody, civil law distinguishes between children whose parents are married at birth and children whose parents are not married at birth. In public law, authorities and administrations have to observe the parental right as a directly applicable basic right (binding due to Paragraph 3 of the Basic Law).
The child's parents are mother and father. Mother is whoever gave birth to the child ( BGB). In the case of egg donation - which is forbidden in Germany anyway - it is not the donor who is the mother, but the woman who carries and gives birth to the child. The father is the man who is married to the mother of the child at the time of the birth, otherwise who has recognized paternity, otherwise the person whose paternity has been established by a court ( BGB). Statutory paternity can be challenged by all parties involved ( BGB). The biological father can only contest paternity if there is no social-family relationship between the legal father and the child or if it did not exist in the event of the death of the legal father.
Holder of parental responsibility for legitimate children
With regard to parental custody, a distinction is made between custody of the child during the existence of the marital partnership and custody of the child in the case of separated parents. For custody of the legitimate child, a legal divorce of the marriage is not important; What matters is whether the marriage is lived together. Of course, if the marriage continues, either party can request the restoration of the marital partnership ( (1) BGB).
In Germany, custody of legitimate children is generally shared by both married parents who live in a marital partnership ( child . In the event of differences of opinion between the parents about the manner in which custody is exercised, the family court can transfer the decision-making right to one parent alone, provided the matter is of major importance for the child and provided that the decision by one parent alone does not run counter to the interests of the child . The parent who has been authorized to do so by the court has a casting vote on the matter . The parents are not entitled to custody insofar as a carer has been appointed to take care of the child's affairs. If the parents were jointly entitled to parental custody and one parent died, the surviving parent is entitled to parental custody ( (1) BGB).(1) BGB). The parents have to exercise custody jointly and independently for the best interests of the
Parents living apart
Even if they are separated and in the event of a divorce, parental custody generally remains with both parents. If one of the parents applies to the family court to transfer custody entirely or in certain areas (e.g. residence , school or medical matters) to him, he will only be successful if either the other parent agrees (unless a child of at least 14 years of age objects) or if the family court considers the transfer of parental responsibility to the applicant to be necessary for the best interests of the child . The prerequisite for this is that the parents are unable to make the necessary decisions for the child together because they B. are deeply divided. When deciding which parent to transfer custody to, the family court takes into account all aspects of the child's best interests. These include a. the child’s ties to both parents, their suitability for upbringing , their respective bond tolerance , the greatest possible continuity of social contacts and the child’s environment, and finally, depending on the age, the wishes of the child itself.
If the parents are jointly entitled to custody, the parent with whom the child is staying with the consent of the other parent or on the basis of a court decision makes the decisions for the child in matters of daily life ((1) sentence 2 BGB ). Matters of daily life include everyday school life, registration for private tuition or sports club, food issues, television consumption, clothing, dealing with friends and relatives, attending sports or cultural events, ordinary medical care, pocket money, administration of usual monetary gifts by relatives, consent according to 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.
Joint custody therefore only has an effect in matters the regulation of which is of considerable importance for the child. These include the child's habitual residence (with which parent does the child live?), The caring parent moving with the child, changing schools, retraining, choosing a career, changing the child to a home or boarding school, baptism, serious medical interventions and smaller trips Children in unfamiliar cultures on flights lasting several hours.
It is also possible that only partial areas of parental custody are assigned to a parent ( child's care , in particular the residence determination , health care, the education law , the assets concerned , which concern in education matters or legal representation to be.(2) BGB). This may be the
Holder of parental responsibility for children born out of wedlock
If the parents are not married to each other at birth, they are entitled to parental custody in a positive way, a) if the mother and the legal father make a formal "declaration of intent to exercise parental custody" ( declaration of custody ), b) if the Parents marry each other or c) the family court jointly assigns parental custody to the parents. The list in Paragraph 1 BGB is not exhaustive.
Until July 2010, the illegitimate father of the child was generally only able to obtain joint parental custody if the mother agreed with a declaration of custody, provided the mother is not otherwise married. This regulation was the subject of heated legal disputes. There was only an exception for certain "old cases" in which parents had separated before the reform of the child law reform - i.e. before July 1998 - and thus could not have a custody declaration publicly certified at the time ( Paragraphs 3 and 4 EGBGB). In these cases, the family court could, at the request of one parent, replace the declaration of custody by the other parent if joint parental custody serves the best interests of the child .
This regulation originated from the traditional idea that marriage and family should coincide as much as possible. Illegitimate children originated according to this model z. B. an extramarital relationship or a fleeting affair, in which the father has little interest in the child, so that the question of custody does not arise in such cases. If the marriage occurs after conception , the father is also involved in custody. Through the marriage, he then has joint custody of the (expected) child.
According to many opinions, this basic legal concept no longer corresponds to social reality. Today, children often live in families in which the parents are not married to each other. B. in a so-called blended family (also called step-family by lawyers). In 2007 about every fourth (1996: about every sixth) child in the old federal states and 57% of all children born in the new federal states were out of wedlock. In such cases it does not seem appropriate that the father cannot be granted custody by virtue of his father role (or his will alone), but only through a publicly documented declaration of intent from the mother of the same kind . If the custody declaration is not made properly and the illegitimate cohabitation with children falls apart, the father's chances of having custody of an illegitimate child transferred from the family judge are significantly worse than the chances of a comparable father of a legitimate child.
In 2003, the Federal Constitutional Court held the concept of German Civil Code (BGB) as “currently essentially constitutional”. The assignment of parental custody of illegitimate children after the birth to the mother of the child only serves the purpose of legal security. Despite contradicting individual cases, the legislature cannot assume that illegitimate children will be born into a situation similar to marriage or that adequate care with the aim of mental and physical well-being can be guaranteed. Rather, it must also be assumed that the case, which probably occurs more frequently, is that the father is not interested in his child.
In December 2009, decided the European Court of Human Rights in the case Zaunegger vs. Germany, however, that the German regulation violates the European Convention on Human Rights. The Federal Constitutional Court thereupon ruled on July 21, 2010, that the legal regulations in Abs. 1 Nr. 1 and Abs. 1 BGB, which generally exclude fathers from taking care of their child, with Abs. 2 GG are incompatible. In its decision, the Federal Constitutional Court ordered at the same time provisionally (up to a new legal regulation) that the family courts should transfer parental custody or part of parental custody jointly to the parents at the request of one of the parents, insofar as it can be expected that this corresponds to the best interests of the child see section 75).
The legislature responded with the Parental Care Reform Act for parents who are not married to each other . If the illegitimate mother does not participate in a notarized declaration of custody , the father now has the option of filing an application at the family court. The decision should be made in a simplified procedure, because the legislature now assumes that the jointly exercised parental custody generally does not contradict the the child ( (2) BGB). The illegitimate father does not have to prove that joint custody benefits the child's best interests. Rather, the principle of the “negative best interests test” applies: The judges grant the parents joint custody if this does not contradict the child's best interests. Before making a decision, the court must give the mother the opportunity to raise objections to joint custody within a period of several weeks. If the mother does not present any reasons against joint custody, the court should decide on the basis of the files - i.e. without hearing the parents or the representatives of the youth welfare office in person. The large number of family constellations observed in society (with illegitimate parents and their children) still allows a differentiated view. The change in the law (in force since May 19, 2013) now also takes into account the illegitimate father's right to a family according to European standards with regard to a guarantee of legal recourse (see decision of the European Court of Human Rights of December 3, 2009).
Spouse's powers of custody
Anyone who is not a parent himself but is the spouse of one of the parents with custody (i.e. step-parent) has the right to participate in decisions on matters relating to the child's daily life in agreement with the parent who has custody ( imminent danger , this spouse is entitled to take all legal acts necessary for the best interests of the child; the parent who is married to him must be informed immediately. The family court can limit or exclude the spouse's right to codecision.BGB). In the case of
Decision-making authority of the parent with no custody
The parent who is not the holder of parental custody has the right to make decisions in matters of daily life for the time in which the child is lawfully staying with him ( BGB ) and a conditional power of representation in the event of imminent danger ( (1) sentence 4 BGB in conjunction with (1) sentence 5 BGB; so-called emergency representation ).in conjunction with (1) sentence 4
Parental agreements of non-married parents
Parents who are not married to each other are at liberty to agree on rules on the principles of raising a child together or on the father's involvement in the upbringing, care and supervision. In engagement, in particular, agreements about a common future with the child are common and can be in the form of the marriage contract or in the form of the private declaration of intent (e.g. BGB, ZPO) in a family-friendly manner concepts for the perception of parental care, without a civil marriage certificate ', but also in the event of separation with a common child.
Foster parent custody powers
If a child is in family care ( Book VIII of the Social Code ), the foster parents can decide on matters of daily life, manage the child's earnings and apply for maintenance and social benefits ( BGB). The youth welfare office should mediate in disputes between foster parents and birth parents ( Book VIII of the Social Code).
Transfer to a carer or guardian
If necessary, the family court can define further sub-areas and transfer them to supplementary caregivers by the guardianship court . This occurs in disputes about custody or child welfare , for example when health care is transferred to foster parents or the right to determine residence is transferred to the youth welfare office. If, on the other hand, custody is transferred in full, one speaks of guardianship .
Suspension and elimination of parental custody
Under certain circumstances, parental custody is suspended, with the result that the parent cannot exercise it. ( BGB). A distinction is made here between:
- Rest for legal reasons ( incapable or limited in legal capacity, parental custody is suspended. If the parent is still a minor and has limited legal capacity for this reason alone, he or she is still entitled to take care of the person. If there is no other parent and a guardian has been appointed for this reason, the underage parent has the casting vote in questions about personal care in the event of a dispute. BGB): if the parent is legally
- Rest for factual reasons ( BGB): upon application, the family court can determine that the parent is actually prevented from exercising parental responsibility. This is the case, for example, when the parent is detained, such as in a correctional facility. Parental custody is only revived if the family court determines this.
- Confidential birth ( BGB): in the case of a confidential birth, the mother's parental custody is suspended as long as she does not give up her anonymity.
Parental care is completely eliminated:
- if the parent dies ( declared dead ( BGB) BGB) or is
- if parental custody is withdrawn from the parent by the family court ( Paragraph 3, Clause 1, Point 5 BGB)
If parental custody of one parent rests, the parental custody usually rests with the other parent. If parental custody is the sole responsibility of the parent whose parental custody is suspended and it is not foreseeable that parental custody will be revived in the future, the family court must transfer parental custody to the other parent if this is not contrary to the best interests of the child . (BGB) The same applies to the absence of parental custody. ( BGB) If a parent has been declared dead and it later turns out that the parent is alive, parental custody can be transferred back to him on request if this does not contradict the best interests of the child. ( BGB)
The child lived longer period along with a step-parent or colloquial eligible relatives (grandparents, siblings) who wants to carry the child to the remaining parent, the family court may, on application to arrange the whereabouts of the child to his previous place of residence, if otherwise the child's best interests would be jeopardized . ( BGB)
Content of parental care
Parental custody is a legal protection relationship that serves the interests of the minor child. It represents a (“absolute”) right that is bound by duties and that affects everyone. The focus here is on parental responsibility and thus the character of duty.
Parental custody defines the rights of the holder of custody vis-à-vis the child himself (“positive function”). In addition, the holder of custody can exclude other persons who act illegally on the child from this influence (“negative function”). Parental custody thus has a dual nature: on the one hand, it establishes a right to the child, on the other hand, it establishes a right vis-à-vis third parties who have an impermissible effect on the child.
Effect on the child
The positive function of parental custody does not include the right to switch with the child at will. Rather, the BGB lays down the powers of the holder of custody in detail. Accordingly, the content of custody breaks down into several sub-areas. InParagraph 1, Clause 2 of the German Civil Code, personal care and asset management ( previously: asset management) are expressly mentioned . In addition, parental custody also includes the authority of the custodian to represent the child legally and effectively in court ( BGB).
Effect on third parties
Custody also includes the right to exclude anyone from influencing the child (exclusion function against third parties). If someone takes possession of the child without being authorized to do so, the holder of custody can request the child to be surrendered ( family court . A fine according to FamFG (previous law: penalty or imprisonment according to Paragraph 1 ZPO within the scope of foreclosure ) can be imposed on the offender to enforce custody . If someone else culpably violates custody, the custodial holder can, insofar as he has suffered damage, demand compensation in accordance with BGB.(1) BGB). If custody is violated by a third party other than withholding the child (e.g. violation of the right to determine how the child is to be treated for and against third parties, (2) BGB), then the owner can of the custody of these for the purpose of the actual restoration of his right to remedy the violation ( Paragraph 1, Clause 1 BGB analogous) and, if further violations are concerned, cease and desist ( Paragraph 1, Clause 2 BGB analogous) This does not apply if the holder of custody is obliged to tolerate ( Paragraph 2 BGB analogous). An obligation of the holder of custody to tolerate may arise from a contact regulation by the
Obligation of custody
Custody differs from an absolute right of domination in that the custodial holder, even if the BGB grants substantive powers over the child, may only exercise this for the best interests of the child. Therefore, custody does not grant exclusive power of will. Rather, it is earmarked. The child’s abilities and their need to act independently and responsibly must be taken into account. The holder of custody must take into account the child's suitability and inclination when choosing a career. Custody must be exercised non-violently. The best interests of the child usually include dealing with both parents, etc.
Since the Child Rights Reform Act , which came into force on July 1, 1998, the mandatory nature of parental custody has been emphasized more clearly: Parents have first and foremost the duty - and also the right - to parental custody. It is therefore a duty-bound right which the state community watches over according to GG. The state security office is primarily responsible for the youth welfare office and the family court. When exercising custody, the holder of custody is only responsible for the level of care that they usually apply in their own affairs.
The right to exercise parental custody by one parent alone is not an unlimited right because of the rights of the child and the other parent. So there are z. In the case of the right of a single parent to determine the residence status , for example, there are considerable thresholds and limits so that the right of access ( (2) BGB) and the mutual assistance right ( BGB) can effectively apply and not fail because the distance is too great. In the event of conflicting interests with regard to the child's actual whereabouts and resulting collisions between the fundamental rights of the mother, the fundamental rights of the child and the fundamental rights of the father, practical concordance should be sought and established in a social way .
According to a ruling by the Federal Social Court of Kassel of November 7, 2006, recipients of unemployment benefit II can, in exceptional cases, claim travel expenses from the social welfare office that they incur as a result of dealing with the children.
|care||Personal care||Asset care||Representation of the child|
|Right to the child||Right and duty to look after, bring up and supervise the child and determine his or her place of residence||
||Right, for and against the child declarations of intent to deliver and procedural measures to make
(to manage the right of custody of the owner, the property of the child, includes by implication a transfer right of the child represented at the custody holder as a representative of the child.)
|Legal bases||(1) BGB||BGB||in conjunction with BGB|
|Law against third parties||
||the power of attorney does not grant any rights vis-à-vis third parties, but only a chance for the custodian to shape the right to look after the child's property and person with the help of legal transactions , legal acts or other declarations of intent .|
The custody includes, among other care, supervision and education of the child and his the right to stay to be determined. If the right to determine the residence of the child is disturbed by a third party through unlawful withholding of the child, the person responsible for custody can demand that the third party surrender it. If a third person who is not the owner of the personal care is in contact with the child, the owner of the personal care can call upon the third party to cease and desist with regard to dealing with the child or restrict the contact. However, the holder of personal custody must always observe the best interests of the child; According to Paragraph 3 of the German Civil Code, dealing with both parents and dealing with people to whom the child has ties is generally part of the child's best interests. The family court can regulate the handling of the child in more detail ( BGB)
When bringing up the child, it must be ensured that the child has a right to a non-violent upbringing. This now excludes the use of breeding materials ( training, consideration must be given to the child's inclination and ability. By virtue of their right to care for the child, the custodians cannot consent to the child being sterilized . The right to stay to determine the child, includes only danger in delay, a placement of the child, with a detention is connected. The approval of the family court must be obtained without imminent danger.(2) BGB). With regard to education and
Personal care for a minor child who is married is limited to representation in personal matters.
Is in the social security method of children and youth (s. SGB VIII ) the speech of people who has custody and guardian , then for the definition SGB VIII and for the party status or for the use of those involved in the process significantly SGB X.
The asset care includes managing the assets of the child. Caring for the child's property includes the right of the custodian to take possession of the child's property (right of possession). Furthermore, asset management concerns all property law decisions that affect the child's assets (use of the child's assets through investment or consumption). The custodial holder must invest the child's assets economically (i.e. interest-bearing), unless they are to be kept available to cover the expenses. Unlike in previous family law of custody holder acquires no right of use (the right fruits such as interest, rent and other benefits of use or drag) more on child assets. In return, however, he no longer bears his burdens. Instead of such a right of use, the custodial holder can use the income from the child's assets to cover the administrative costs or maintenance of the child or his unmarried minor siblings.
The asset management does not extend to the assets that the child acquires in the event of death or that are given to him among the living free of charge, if the testator has determined by testamentary disposition, the third party in the donation that the acquisition is excluded from the administration by the custodial holder should be. This property also includes that which the child acquires on the basis of a right or as a replacement for the destruction, damage or confiscation of an item belonging to the property or through a legal transaction that relates to this property. The testator or the third party can also determine that administration should be the responsibility of only one parent; he can also issue certain orders to the holder of the custody, which he has to observe when managing the property allocated to the child. The custodial holder must keep a list of assets and submit it to the family court for assets acquired by the child at death, unless the assets acquired do not exceed € 15,000 or the testator has issued a different order.
Power of representation
The right of representation includes litigation for the children and the protection of children's rights. Provided that the parents have custody, the power of representation is shared by both; The child's receptionist is everyone alone. If there is imminent danger, one parent can, in exceptional cases, represent the child alone. A declaration of intent or a procedural act that the holder of custody issues on behalf of the child works for and against the child ( BGB). The represented child is not entitled to issue instructions to his or her representative, because property law decisions regarding the child's property are taken by the property management. The power of representation of the holder of custody is thus the little sister of property management, with whose help decisions made in the context of property management can be implemented vis-à-vis third parties.
In order to prevent the child's assets from deteriorating, the authorized representative is bound by certain rules. He cannot make donations on behalf of the child (except donations that correspond to a moral obligation or a consideration of decency). A number of legal transactions are subject to approval by the guardianship court (e.g. disposal of land; purchase or sale of a commercial transaction against payment, etc.). This also applies to the rejection of an inheritance or a legacy or the waiver of a compulsory portion . The holder of custody should also not open a business transaction on behalf of the child without the approval of the family court.
However, following the case law of the Federal Constitutional Court , the legislature has a limitation of the child's liability for the legal in German Civil Code in such a way that the child's liability for the actions of his representative is limited to his or her assets when he comes of age . This gives the child the right to reach the age of majority without debt .
If the child is seven years of age or older, in addition to being represented by the custodial holder, he or she can enter into legal transactions without the consent of the holder of the custody , through which he only gains a legal advantage ( BGB). For legal transactions that (also) create a disadvantage, such as a sales contract, the child requires the consent or approval of the legal representative, unless the legal transaction is carried out with pocket money ( BGB). (see also limited legal capacity )
Measures relating to the exercise of custody
If the physical, emotional or spiritual well-being of the child is endangered by failure, neglect or abuse of personal care, the family court must take the necessary measures ( BGB). The court can also take measures with effect against third parties. Measures related to the separation of the child from the family may only be taken if they are proportionate. A withdrawal of custody may be ordered only when other measures have failed or a withdrawal to avert a danger to the child is necessary. Public aid takes precedence over measures .
If the child's financial loss is to be feared as a result of the failure of the custodian or abuse of his or her custody, the family court can take the necessary measures (billing to the family court , investment measures, security deposits by the custodian) to safeguard assets.
In 2007, then Family Minister Ursula von der Leyen called for the possibility for family courts to intervene more quickly and, for example, to oblige parents to take part in anti-violence training ; In the event of refusal, it must ultimately be possible to withdraw custody.
The overview table above shows the person to whom custody is transferred in the event of his / her withdrawal by the family court. According to the Federal Statistical Office , custody was withdrawn in whole or in part in a total of 8,527 cases in the Federal Republic of Germany in 2004. In 2011, the court ordered the total or partial withdrawal of custody in 12,700 cases.
Historical legal situation in Germany
Historically, in the old family law of the BGB of 1896, only the right to care for the person was available to both parents together. The other components of parental authority (asset management and representation of the child) were the sole responsibility of the father. If the parents disagreed over the exercise of personal care, the father's opinion decided ( the father's casting vote ). The father acquired the right to use the child's property. In return, he also had to bear the burden of the child's fortune. If the father died, the mother alone exercised the right of upbringing , unless the father had appointed assistance by contract or will .
In the case of illegitimate children, the father had no possibility of acquiring parental authority unless he married the mother or made a declaration of marital status. Rather, a guardian was appointed for paternal custody . However, the mother was able to apply for sole custody.
In West Germany, these inequalities were gradually reduced by the legislative reforms in 1969 ( non-wedlock law ), 1980 (reform of parental care) and 1998 ( child rights reform law ). However, after 1998 the father of an illegitimate child still did not have an equal right to custody of the mother: the legislature had assumed that mothers would generally only refuse joint custody if they wanted to protect the child because of a parental conflict . In principle, a father could only obtain custody if he married the mother or if the mother agreed to joint custody. The legal situation of fathers has fundamentally changed with the decision of the Federal Constitutional Court of July 21, 2010.
In the GDR , family law was regulated in the Family Code (FGB) from 1966 to 1990 , which was replaced by the BGB in this respect. The concept of parental authority was replaced by the concept of the right to bring up children . According to § 45 FGB, the parents exercised the right of upbringing together. If the parents were not married, only the mother had the right to bring up the child (Section 46 FGB); the father had to provide maintenance according to his strength.
- Tobias Rist: Equality and custody. Strengthening the rights of fathers of illegitimate children through the draft reform of the custody of unmarried parents. In: JSE 4/2012, p. 5 ff. (PDF)
- Federal Ministry for Family, Seniors, Women and Youth (main page)
- Parental responsibility at: European Judicial Network (with links to discuss the topic of parental custody in individual EU countries)
- Lutz Eidam : New criminal law answers to the fight for the common child
- The provisions on custody ( memento of the original dated June 1, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (accessed on February 22, 2008)
- Federal Statistical Office: Births in Germany , December 2007. PDF page 10
- Unmarried births by districts 2007
- BVerfG, judgment of January 29, 2003 - 1 BvL 20/99 u. a.
- Joint parental custody of unmarried parents for children out of wedlock, press release No. 7/2003 of January 29, 2003
- BVerfG, decision of July 21, 2010 , Az. 1 BvR 420/09, full text.
- Lore Maria Peschel-Gutzeit : The custody position of the father who is not married to the mother of the child . In: NJW , 2010, 2990.
- BVerfG , decision of November 29, 1993, Az. 1 BvR 1045/93, NJW 1994, 1208.
- B 7b AS 14/06 R Exercising the right of access, see for example No extra money for dealing with the daughters - BSG of November 7, 2006, Az. B 7b AS 14/06 R. (PDF) (No longer available online. ) Archived from the original on October 27, 2007 ; Retrieved February 22, 2008 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- Overworked parents should lose custody. In: Spiegel Online . December 24, 2007, accessed September 15, 2019 .
- custody cases. ( Memento of the original from May 23, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Federal Office of Statistics.
- custody in 2011. ( Memento of the original from November 15, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Press release from the Federal Statistical Office.
- How custody passed to the mothers alone. Berliner Morgenpost, August 4, 2010, accessed on August 4, 2010 .