Declaration of concern

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The declaration of custody (more often referred to as a declaration of custody ) is a special declaration of intent made by the parents of a child who are not married to each other to the effect that they want to exercise parental custody together . With the submission of the declaration of custody in front of a notary , both parents have joint parental custody rights ( Section 1626a (1) BGB ).

General

With the entry into force of the Childhood Law Reform Act on July 1, 1998, the possibility of joint custody of a minor child was introduced in the Federal Republic of Germany even in cases in which the parents are not married to each other . The legal basis is § 1626 BGB, in particular § 1626a Paragraph 1 No. 1 BGB.

Requirements for the declaration of custody

It must be a child whose parents were not married to each other when it was born. Until June 30, 1998, these children were declared out of wedlock . Today the text of the law is "(children) of parents who are not married to each other".

The child must be under the parental custody of the mother at the time of the declaration of custody, i. i.e. it must be a minor. Furthermore, no judicial decision on parental custody ( § 1671 , § 1672 , § 1696 Paragraph 1 BGB) may have been issued. A declaration of custody is only ineffective if it does not meet certain requirements ( hostility to conditions , highly personal declaration, etc.) of the BGB ( § 1626e BGB: § 1626b , § 1626c , § 1626d ).

The declaration of custody is also possible if the mother is not yet able to exercise parental custody because she is a minor and the mother's parents consent to the declaration of custody. In this case, the father alone exercises parental custody until the mother reaches the age of majority after the declaration of custody has been issued. The declaration of custody can also be declared if the child has not yet been born but has already been conceived.

It is not necessary that the child’s parents run a common household. The nationality of the parents is also irrelevant.

An official guardianship of the youth welfare office (Section 1706 BGB in the previous version) in the old federal states until June 30, 1998 (and now continued as a deputy ) is not an obstacle to the submission of the declaration of custody. A guardianship new law ( § 1712 While BGB) terminates with the validity of the custody declaration; A separated mother can (even with joint custody) request or apply for assistance from the youth welfare office for the child if the child lives with her in her care ( Section 1713, Paragraph 1, Sentence 2 BGB).

Form of custody declaration

The declaration of custody requires public notarization ( Section 1626d Paragraph 1 BGB). Every notary or the notary of a youth welfare office is responsible ( § 87e SGB ​​VIII ). The declaration can be made jointly by both parents or by each of them individually. This can also be done at different youth welfare offices or notaries. In the case of individually submitted declarations of custody, joint parental custody is only legally effective after both parents have made the declaration.

If one of the parents or both parents are minors, a declaration of consent from the respective legal representatives (parents, guardians ) is required in order to be legally effective . These declarations of consent must be publicly notarized in the same way.

The certification at the youth welfare office is free of charge ( § 64 SGB ​​X ). The notary is obliged to raise costs in accordance with the Court and Notary Fees Act (GNotKG).

Legal effects of the declaration of custody

As soon as the custody declarations have been made by both parents and the process has been documented, both parents are entitled to joint parental custody of the child. A judicial or administrative decision is not required.

If the mother of the child is still a minor, but the father is of legal age, the guardianship for the child ends in favor of sole parental custody of the father, until joint custody begins, as soon as the mother also comes of age. If the father is still a minor, but the mother is of legal age, joint parental custody does not come into effect until the father reaches the age of majority , before that it remains with the mother alone.

If both parents are minors, the guardianship of the child continues until one parent reaches the age of majority, who from this point exercises sole parental custody until the second parent also comes of age (cf. § 1791c BGB).

If one parent dies, the other exercises sole parental custody without the need for a court decision. The same applies if a parent's custody has been withdrawn by the family court ( Section 1666 BGB) or if the court has established that parental custody has been suspended ( Section 1673 , Section 1674 BGB).

Sole right of decision

If the child actually only lives in the household of one parent, the parent retains the sole right to make decisions in matters of daily life even in spite of joint parental custody ( § 1687 BGB). These are those that are common and do not have an impact on the child's development that is difficult to modify.

Modification of the custody regime

The provisions on the declaration of custody do not provide for a revocation . If one parent no longer agrees to joint parental custody, each parent can apply to the family court for sole parental custody to be transferred ( Section 1671 BGB). In this court decision, the mother has no prerogative over the father.

The prerequisite is a permanent separation of the child's parents ( § 1567 BGB) as well as a) the consent of the other parent and the waiver of an objection by the child over 14 years old or b) the conviction of the court that sole custody corresponds best to the best interests of the child ( § 1697a BGB).

Care register

A register of custody declarations is kept at the youth welfare office in the child's place of birth. The mother can request a certificate stating that there are no declarations of custody for her child. The request must be sent to the youth welfare office in whose district the mother has her habitual residence (see Section 30, Paragraph 3 SGB ​​I , which is usually the place of residence).

Negative certificate

With a so-called negative certificate, a mother who is not or was not married to the father of her child can prove sole custody of her child. This certificate from the Youth Welfare Office confirms that at the time it was issued there was no corresponding declaration of custody regarding joint parental custody , no court decision to transfer joint parental custody and no court decision regarding joint parental custody. If no joint declaration of custody is given by the parents, the sole custody of the mother remains ( Section 1626a (2) BGB). If, on the other hand, there are two declarations of custody, the negative certificate may not be issued even if the youth welfare office has doubts about its effectiveness. If the youth welfare office is aware that the family court has changed the mother's sole care, it is also not allowed to issue a negative certificate.

Official statistics of declarations of custody

Since 2004, the youth welfare offices have had to report the number of declarations of custody to the state statistical offices. The basis is the “Law for the Implementation of Family Policy Decisions of the Federal Constitutional Court ”, according to which the declarations of custody that became legally effective in the reporting year must be recorded as part of the child and youth welfare statistics. The background is that the legislature was asked by the Federal Constitutional Court to observe the social development in the area of ​​common care, because if it turns out that a mother who lives with the father of the child, not only exceptionally and only for serious reasons, from the child's best interests If the father's desire for joint custody is denied for reasons given, the law should then be changed so that the parents' rights of the fathers according to Art. 6, Paragraph 2 of the Basic Law are taken into account. So far, however, the youth welfare offices have predominantly reported the number of notarized declarations of custody instead of the survey criteria according to Section 99, Paragraph 6a of Book VIII of the Social Code. Thus, both unilateral (not fully effective - if e.g. only the father had his declaration of will notarized), notarized twice (because the parents appeared separately at the youth welfare office), as well as those for children who were never born (e.g. due to a miscarriage) and those for children whose parents married before the birth. The number of 87,366 registered notarized declarations of custody, based on approx. 197,000 children born out of wedlock in 2004, should therefore lead to further questions about the correct interpretation of this number and be somewhat relativized. In order to achieve a suitable basis for comparison, uniform administrative regulations or implementing provisions regarding the documentary inclusion of declarations of custody would be required . The organization of such notarizations is basically the responsibility of the federal states ( Art. 30 GG).

See also

Individual evidence

  1. ↑ Lutz Bode, Practical Handbook Lawyer of the Child , 2004, p. 22
  2. ↑ Julius von Staudinger / Hermann Amann / Bernhard Grossfeld / Jan Kropholler, Commentary on the Civil Code with Introductory Act and subsidiary laws , 2007, p. 193