Supplementary custody

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Under a Ergänzungspflegschaft means the judicial transfer of a partial area of parental care for a minor to another person according to German family law ( § 1909 BGB ). Because of the high requirements that must be met in the event of the entire parental custody being withdrawn ( Section 1666 BGB), parental custody is often only partially withdrawn and a supplementary carer is appointed. When guardianship is called a complete legal substitute for parental care, about the death of their parents.

Financing takes place in accordance with the Guardian and Supervisor Compensation Act .

Order options

If the child is at risk :

What these constellations have in common is that custody remains with the custodian - parent or parent -, but a specific task or sphere of activity is assigned to the carer by court order.

However, are the parents by law, e.g. B. excluded from representing your child on the basis of Section 52 (2) sentence 2 or Section 81c (2) sentence 2 of the Code of Criminal Procedure , the judicial officer of the family court (Section 151 No. 5 FamFG) appoints a supplementary carer after hearing the parties involved. Since the authority to exercise the right to refuse to testify or to decide whether to consent to the physical examination does not meet the requirements of adequate legal representation of the child in cases of domestic violence, supplementary custody is of marginal importance. As a rule, more extensive interference with custody is required.

Supplementary custody

Apart from the case already mentioned, in which one or both parents are excluded from representing the child, the establishment of supplementary custody is always based on a decision by the family court that restricts custody , e.g. B. with reference to § 1666 BGB (measures of the family court in case of child welfare risk), §§ 1629 para. 2 i. V. m. §§ 1795, 1796 BGB (legal exclusion of representation in some legal transactions and descent procedures) or § 1629 para. 2a i. V. m. Section 1598a, Paragraph 2 of the German Civil Code (replacement of consent to a genetic examination to clarify the biological parentage).

The supplementary custody can also be used for parental custody or parts of parental custody such as B. the right to determine residence, be ordered (custody). This can be useful if joint parental custody no longer works, both parents have applied for sole custody, but there is a risk that sole custody of one parent could lead to an escalation of conflict, exclusion of the other parent or harmful effects on the child . In this case, the court can transfer parts of the custody that the parents are prevented from taking care of to a custody officer, who then has the right to determine the tasks specified by the court with regard to the child.

Parental custody when appointing a carer is regulated by § 1630 BGB. It does not extend to those matters of the child for which a carer is appointed. The youth welfare office , an association or a professional nurse can only be appointed if a voluntary individual carer is not available ( Section 1915 (1) in conjunction with Section 1791b (1) sentence 1 BGB). A ranking does not (yet) exist.

Natural and legal persons as caregivers

An individual can be appointed as a voluntary supplementary carer. The volunteer carer can claim the costs incurred in the form of a lump sum against the judicial fund ( § 1835a BGB). Some youth welfare offices offer training courses for working as a voluntary supplementary carer.

Persons who lead guardianship and guardianship professionally are entitled to reimbursement for their time expended in accordance with the Guardian and Supervisor Compensation Act (VBVG), not only to reimbursement of expenses like volunteers . Depending on the qualification, the hourly remuneration is 23.00, 29.50 or 39.00 euros (Section 3 VBVG) plus expenses. According to Section 1915, Paragraph 1 of the German Civil Code, the hourly remuneration rate can also be set differently. The professionally active supplementary carer (Section 1 VBVG ) (like the guardian or legal supervisor ) has been expressly exempt from sales tax since July 1, 2013 (Section 4 No. 25c Sales Tax Act ).

An association may only be appointed as a guardian if there is no suitable person as a voluntary individual guardian (Section 1791a).

The transfer of guardianship to the youth welfare office used to be more common. After the Kevin case , a case limit per youth welfare worker was introduced. The guardianship at the youth welfare office is run free of charge ( Section 1836 (3) BGB, Section 1835a BGB), which in turn can charge the parents with the costs incurred. The disadvantage of appointing the youth welfare office as a supplementary carer is that the youth welfare office has to act in an advisory and supportive role towards the parents at the same time ( § 16 to § 18 of the eighth book of the Social Security Code (SGB VIII)); in individual cases this can lead to inadmissible confusion of the role of determination, control and helper. With the appointment of a suitable individual this would be excluded.

Jurisprudence

  • The lawyer appointed as supplementary guardian can, in accordance with Section 1835 (3) BGB, account for guardianship activity in accordance with lawyer's fee law if and to the extent that the task to be dealt with is an activity specific to the profession of lawyer (Federal Court of Justice, decision of 4 December 2013 - XII ZB 57/13).
  • A lawyer appointed to be a supplementary carer can claim remuneration under the RVG if, in the course of his work, he has to review a contract through which company shares in a KG are transferred from the child's parents to the children he cares for (OLG Hamm, decision of 22 April 2014, Az. 6 WF 190/13).
  • If a participant in a notarized property transfer agreement has assumed the costs triggered by the deed, the expenses of the additional carer appointed to represent the children involved can be determined against him as the debtor (OLG Braunschweig, decision of 11 August 2016, 1 WF 139/16).

See also

literature

  • Bestelmeyer: The legal requirements for the effective appointment of a supplementary carer - reply to Keuter ", FamRZ 2011, 950
  • Keuter: Entitlement to remuneration of the professional supplementary carer for activities before appointment, FamRZ 2010, 1955
  • Thiel, Peter: Between assistance and coercion: Accompanied contact and social care. In: The youth welfare office. 2003, 449
  • On the question of the selection and discharge of a supplementary carer and the examination of the interests of the child in the event of an application for the discharge of the carer. Bavarian Higher Regional Court, decision of May 12, 2004 - 1 Z BR27 / 04, FGPrax 2004, 239

Individual evidence

  1. ↑ OLG Hamm, decision of April 22, 2014, Az. 6 WF 190/13
  2. ↑ [1]