Social service

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Umgangspflegschaft certain conditions by the responsible can in the presence of family court are located. The guardian is then authorized to determine how the court-regulated contact of the child or children with the separated parent is enforced even against the will of the other parent. After court nurses had been appointed by the courts for a long time in practice, it was not until the FamFG in September 2009 that a separate legal basis for nurses was created. The present day care worker resembles the earlier supplementary carer with the sphere of activity "regulation of contact". Since in the past a custody agreement could only be ordered in the case of a child's welfare endangerment according to § 1666 BGB , since it represented an interference with the constitutionally protected parental rights / custody rights, lower-threshold requirements are now sufficient.

Legal

Legal basis

The legal basis is Section 1684, Paragraph 3 of the German Civil Code: “The family court can decide on the scope of the right of access and regulate its exercise, also in relation to third parties. It can order the parties involved to comply with the obligation set out in paragraph 2. If the duty according to paragraph 2 is violated permanently or repeatedly, the family court can also order a guardian for the conduct of the contact (intercommunal guardianship). The custody includes the right to request the surrender of the child for the purpose of access and to determine his / her residence for the duration of the access. The order is to be limited in time. For the reimbursement of expenses and the remuneration of the social worker, Section 277 of the Act on the Procedure in Family Matters and in Matters of Non-Legal Jurisdiction applies accordingly. "

Requirement for the appointment of the nurse

According to Section 1684 (3) sentence 3, the prerequisite for the arrangement of the custody is that the duty of conduct according to Section 1684 (2) (often also referred to as the loyalty clause) is "permanently or repeatedly significantly impaired". As a result, a child's welfare endangerment is no longer necessary according to § 1666 BGB - “To eliminate a danger to the child's welfare (here: preventing contact and massively influencing the child by the caring parent against the contacting parent) only the mildest means may be chosen. Before the - entire - right to determine residence is withdrawn because of preventing contact, a contact custody must be set up. This can only be disregarded if it is obviously hopeless. "

According to Section 1684 of the German Civil Code (BGB), the guardian can request the parent to surrender the child for the purpose of access. However, if the caring parent does not comply, the preschooler can appeal to the court and obtain an appropriate title.

Duties of the social worker

The duties of the guardian include (according to government draft BT-Drs. 16/6308, p. 345):

  • to demand the surrender of the child for the purpose of access and to determine his / her stay for the duration of the access.
  • Depending on the needs of the child, in particular, the caretaker can also be on site to prepare for contact, to hand over the child to the parent who is authorized to do so and to return the child.
  • Discussions with the parents, with whom disruptions to dealing with people should be counteracted, as well as discussions with the children about dealing with them and any problems that may arise are eligible for compensation.

Ute Kuleisa-Binge stated that according to the current interpretation of the law according to Section 1684 of the German Civil Code (BGB), the guardian is “just an organ” that is supposed to implement the decision of the family court.

There are no clear standards for the nurse. Even in the OLG area, the work and procedural views of the courts are not clear, and often there are no decisions by the corresponding OLG on the respective tasks or expenses of the social worker. The practice of nursing care is therefore difficult.

Necessity of contact arrangements

The duration and frequency of contact must be ordered by the court. The court has to make a specific and complete regulation.

The court always decides whether contact is accompanied or not, as this is usually ordered as sheltered or protected contact. Contact care and contact support are two different legal institutions .

Appointment of the nurse

The nurse is appointed by order of the family court. To be on the safe side, the court should also determine the professionalism of the social worker, otherwise he risks not receiving any remuneration from the judicial fund.

Remuneration of the nurse

The remuneration of the social worker is based on Section 1684, Paragraph 3, Clause 6 of the German Civil Code and, in accordance with Section 3, Paragraph 1, No. 2 of the VBVG, amounts to up to 33.50 euros for each hour. According to Section 277, Paragraph 3 of the FamFG, an additional flat rate of 3 euros per hour can be paid.

See also

literature

  • Wassilios Emmanuel Fthenakis: Accompanied contact with children. Munich 2008.
  • Government draft BT-Drs. 16/6308 , p. 796.
  • Walter Röchling: Handbook lawyer of the child. Baden-Baden 143-165. 2009.
  • State Institute for Early Education (on behalf of the Federal Ministry for Family, Seniors, Women and Youth): German standards for accompanied interaction. Munich 2008.
  • Siegfried Willutzki: The nursing staff. In: ZKJ 2009, 281.

Web links

Individual evidence

  1. ↑ BT-Drs. 16/6308, p. 796 = ZKJ 2010, 306.
  2. ↑ BGH , decision of October 26, 2011, Az. XII ZB 247/11 = ZKJ 2012, 107 ff
  3. ↑ cf. OLG Hamm , decision of July 13, 2010, Az. 2 UF 277/09 = BeckRS 2010, 20165
  4. ↑ a b KG Berlin , decision of August 24, 2012, Az. 25 WF 29/12 = ZKJ 2012, 492
  5. ↑ Ute Kuleisa-Binge: procedural support, supplementary care and contact care . In: FPR 2012, 8-9, p. 363 ff.
  6. ↑ OLG Munich, 26th Senate, decision of March 27, 2007, Az. 26 UF 819/07
  7. ↑ BVerfG , decision of June 17, 2009, Az. 1 BvR 467/09 - "This means that the decision on how to deal with it and how it should be structured may not be passed on to third parties, especially the youth welfare office, by the court. The court itself has to make a concrete and complete regulation (see Rauscher, in: Staudinger, BGB, revision 2006, § 1684 marginal number 170). "
  8. ↑ BGH , decision of February 1, 2012, Az. XII ZB 188/11
  9. ↑ OLG Hamm , decision of May 16, 2014, Az. 2 UF 51/14
  10. ^ KG Berlin , Senate for Family Matters, decision of September 21, 2012, Az. 17 UF 118/12
  11. ↑ BGH , XII. Civil Senate, decision of October 31, 2018, Az.XII ZB 135/18