Why do people judge parents without custody
Parental care - Part 2: What does parental care actually mean and encompass?
1. Nature of parental care
A child is entrusted to parental custody as long as it is a minor (Section 2 BGB) (Section 1626 (1) BGB).
When the BGB was created, this important parental responsibility was referred to as “parental authority”. This designation was only abolished in 1980 because it should also be made clear by legislation that this is not a question of the parents' right to rule over their children, but rather that the parental care function is to be expressed centrally.
When it comes to parental custody, the focus is on the duties of the parents and not on the rights of the parents. This is also emphasized by the legislator in § 1626 BGB ("... duty and right ..."). It is therefore wrong to speak of “parental rights” (e.g. “he / she has sole custody”). Rather, it is a question of a “right in the interests of the child” exercised by the parents - a so-called. Duty-bound law - for which the term "parental responsibility" would be more appropriate.
Parental custody is thus a care and protection relationship for underage children that is constitutionally protected (Article 6 (2) of the Basic Law) and is fundamentally oriented towards the best interests of the child (Section 1627 of the German Civil Code), i.e. for the benefit of its development an independent, self-reliant and socially competent personality (cf. § 1 Paragraph 1 SGB VIII).
This goal can only be achieved if the parents give the child a say in matters of parental custody and give him / her the opportunity to act independently and responsibly (Section 1626 (2) BGB). The parents should let the child participate in decisions (e.g. in questions of pocket money, career choice, choice of apprenticeship place, dealing with friends and acquaintances, organization of leisure time). The law thus requires a style of upbringing that is oriented towards a partnership-based dialogue with the child. If no agreement can be reached, it is ultimately up to the parents alone to make the decision. If they violate the requirement of upbringing based on partnership (legal model of upbringing), they may risk restricting their custody rights (Section 1666 BGB).
2. Holder of parental authority
With regard to parental care, the law distinguishes between children whose parents are married and not married.
Married parents basically have the common duty and the right to care for their minor child (Section 1626 (1) sentence 1 BGB). If they are already married when the child is born, they have mutual custody from the beginning; if they do not marry until later, they are entitled to joint custody from the day of the marriage (Section 1626a, Paragraph 1, No. 2 BGB).
Unmarried parents can have joint custody in accordance with Section 1626a (1) of the German Civil Code (BGB),
1. if they declare that they want to jointly take on custody (declarations of custody),
2. when they marry each other or
3. to the extent that the family court jointly assigns parental custody to them.
Pursuant to 1626 a Paragraph 1 No. 3, Paragraph 3 BGB, the family court transfers parental custody or part of parental custody jointly to both parents at the request of a parent, if the transfer does not contradict the best interests of the child. If the other parent does not provide any reasons that could prevent the transfer of joint parental custody, and if such reasons are not otherwise apparent, it is assumed that joint parental custody does not contradict the best interests of the child.
The declarations of custody within the meaning of Section 1626 a Paragraph 1 Number 1 BGB must be publicly notarized (Section 1626 d Paragraph 1 BGB). Notarizations are carried out by youth welfare offices (Section 59, Paragraph 1, Sentence 1, Number 8 of Book VIII of the Social Code) and notaries. In the event of a dispute regarding joint parental custody, both parents can contact the youth welfare office (Section 18 (2) SGB VIII) and receive advice there. If the attempt at an agreement fails or an agreement appears hopeless from the outset, the family court can transfer joint parental custody to the parents at the request of one of the parents if the transfer does not contradict the best interests of the child (Section 1626a, Paragraph 2, Sentence 1, Paragraph 1, Number 3 BGB).
If both parents are not entitled to parental custody in accordance with Section 1626 a (1) of the German Civil Code (BGB), it remains “otherwise” with the mother in accordance with Section 1626 a (3) of the BGB.
Joint custody must be exercised by mutual agreement for the best interests of the child. In the event of differences of opinion, the parents must try to come to an agreement (Section 1627 BGB). If they do not succeed in doing this and if it is a matter whose regulation is of considerable importance for the child (e.g. choice of school), an appeal can be made to the family court (Section 1628 of the German Civil Code). However, the family court may not rule in the place of the parents. At first it can only try to work towards an agreement between the parents (Section 156 (1) FamFG). The parties involved should be made aware of the options for advice (e.g. in accordance with Section 17 (1) sentence 2 numbers 1 and 2 of Book VIII of the Social Code), the possibility of mediation or other out-of-court settlement of disputes.
If the disagreement persists, the family court must delegate the decision on the disputed matter to one of the parents. The decision ultimately remains in the family.
3. Extent and content of parental custody
Parental custody includes personal care, property care (Section 1626 (1) BGB) and the representation of the child in personal and property matters (legal representation, Section 1629 (1) BGB).
3.1 Personal care
Personal care includes all matters that affect the person of a child. Since a final definition of the exact content of personal care is not possible, the BGB expressly names only the most important areas (expressed in the language of the BGB by the word "in particular"):
- Care (Section 1631 (1) BGB),
- Upbringing (Section 1631 (1) BGB),
- Supervision (Section 1631 (1) BGB),
- Residence regulations (Section 1631 (1) BGB),
- Education and career choice (§ 1631a BGB),
- Accommodation associated with deprivation of liberty (Section 1631b BGB), 1)
- Right to surrender against third parties (Section 1632 Paragraph 1 BGB),
- Determining how to deal with other people (Section 1631 (2) BGB).
In addition, there are other personal care matters that affect the person of a child, which are not explicitly mentioned in the list, but are possible:
- First name,
- Determination (or non-determination) of a religion,
- Consent to medical treatments and operations,
- Promotion of musical, sporting and artistic skills and inclinations, etc.,
- Assertion of legal claims of any kind by the child (in particular claims for damages and maintenance)
This content is also summarized under the term "actual personal care".
This means everything that serves the physical and mental well-being of the child and satisfies his or her basic needs for nutrition, clothing, housing, protection and care. It is inextricably linked with upbringing.
The legislature has not defined the concept of education. He only established general guidelines and defined the framework within which the parents should decide for themselves (§§ 1626 (2), 1627 BGB). By virtue of their right of upbringing, the parents also have a reasonable School education and professional education to worry about the child. Because wrong decisions can have particularly detrimental effects here, the legislature has particularly obliged the parents to exercise their right of determination in accordance with the well-understood individual interests of the child (§ 1631 a BGB). If an agreement cannot be reached between the parents and the child, the parents should seek advice from a suitable person; Under certain circumstances, especially if there is uncertainty about aptitude and career prospects, the employment office's career advice service can also provide valuable services.
According to the Law on Religious Upbringing of Children (RelKErzG), parents have the right to religious education of the child to determine. However, according to Section 5 RelKErzG, the right to determine ends when the child reaches religious maturity, which occurs at the age of 14. If the child has reached the age of 12, it can object to a change of creed and demand to be brought up in its previous creed.
Corporal punishments as educational measures are not permitted. According to Section 1631 (2) of the German Civil Code, children have the right to a non-violent upbringing. This formulation makes it clear that violence cannot be a means of education. However, the legislature is not primarily concerned with punishing violent behavior as bodily harm, but with preventing it through preventive advice. This is why Section 16 (1) of Book VIII of the Social Code has also been amended at the same time, in which a right to advice on non-violent resolution of family conflicts is now standardized.
It includes the obligation to protect the child and third parties from harm by the child.
Parents may only intervene in the fundamental right of confidentiality of letters (Article 10 of the Basic Law) if this is necessary to avert a threat to the child or a third party.
- Determination of residence
On the basis of this right, the parents can determine the place of residence and thus also the placement of the child, e.g. B. in a boarding school or with a foster family. As far as the placement is connected with deprivation of liberty (e.g. detox in a closed facility) the parents need the approval of the family court for this measure according to § 1631b BGB. The youth welfare office is involved in this decision (Section 50 (1) sentence 2 number 1 SGB VIII, Section 162 FamFG). The court has priority and expedited proceedings of this kind (Section 155 FamFG).
-Support from the family court (Section 1631 (3))
The family court must support the parents in exercising parental custody at their request. Before making a decision, it has to hear from the youth welfare office (Section 50, Paragraph 1, Sentence 2, Number 1, SGB VIII, Section 162, FamFG).
-Handling regulations (Section 1632 (2))
Access bans can be enforced against third parties with the help of the family court (Section 1632 (3) BGB). The youth welfare office is also involved in such a procedure (Section 50 (1) sentence 2 number 1 SGB VIII, Section 162 FamFG). In order to comply with its order, the family court can order a fine, possibly even imprisonment (Section 35 (1) FamFG).
- Right to surrender the child (Section 1632 (1))
The family court decides on disputes with third parties or on a surrender dispute between the parents (Section 1632 (3) BGB). A child who has lived with a foster family or carer for a long time can no longer be easily taken away from the carer by the parents (Section 1632 (4) BGB). It depends on whether the care leave has led to the child having found his or her world of reference in the foster family and whether the (possibly abrupt) removal would endanger his or her personal well-being, in particular his mental well-being. In this procedure, too, the court should work towards an agreement of the parties involved and point out out-of-court advice options (Section 156 FamFG). Participation of the youth welfare office: Section 50 (1) sentence 2 number 1 SGB VIII, Section 162 FamFG. The priority and acceleration requirement (Section 155 FamFG) also applies to this procedure.
- Consent for surgical interventions (prohibition of sterilization § 1631c)
The consent required for an intervention (operation, abortion) must always be given by the parents. Only if the child has the necessary intellectual maturity to be able to assess the significance and the consequences of the intervention (scope) is his consent sufficient. The parents, but also the child himself, cannot consent to sterilization of the child.
- Circumcision of the male child (§ 1631d)
Personal care also includes the right to consent to a medically unnecessary circumcision of a male child who is incapable of understanding and judgment if this is to be carried out according to the rules of medical art. This does not apply if the circumcision endangers the child's well-being, also taking into account its purpose.
In the first six months after the birth of the child, persons designated by a religious society may also perform circumcision in accordance with Section 1631d (1) of the German Civil Code (BGB) if they are specially trained and, without being a doctor, are comparable to performing circumcision.
3.2 Asset management
Property care means the right and the obligation to preserve and increase the child's property. Wealth is everything that has value that can be expressed in money. For the so-called Assets do not count what is left to the child for free disposal - for example, because of the educational objective, pocket money falls into the area of personal care.
This area of parental custody thus includes all factual and legal acts that concern the preservation, increase and utilization of the child's property (property, securities, shares, significant amounts of money). This complex is therefore also known as “asset management”. Since very few underage children already have assets, this part of parental custody is usually not of particular importance in practice.
If, however, children already have their own assets as a result of a gift or inheritance or other processes, the parents' asset management can be problematic. The legislator has therefore provided some restrictions to protect underage children:
- Some legal transactions considered particularly important by the legislature (in particular in the case of real estate and credit transactions as well as contracts in which minors would be obliged to go beyond the age of one year) require the approval of the family court (cf. in detail Section 1643 (1) BGB).
- In accordance with Section 1643 (2) of the German Civil Code, the approval of the family court also requires the rejection of an inheritance or legacy and the waiver of a compulsory portion.
- When administering gifts and inheritances, the parents have to adhere to the (possible) orders of the donors or testators (§ 1639 BGB) and are obliged to create a list of assets (§ 1640 BGB) for donations over 15,000 euros.
- Parents can also be completely excluded from the relevant administration by donors and testators (§ 1638 BGB). In that case, a guardian must be appointed by the guardianship court (Section 1909 (1) sentence 2 BGB).
- Parents cannot make any donations to the detriment of the child (§ 1641 BGB); these would be void according to § 134 BGB.
- Money that is subject to the asset management of the parents must be invested by the parents in accordance with the principles of economic asset management, unless it is to be kept ready to cover expenses (cf. § 1642 BGB). The obligation to secure investment (cf. § 1807 BGB) no longer applies since 1980; only guardians or carers are bound to this.
- In the event of an imminent or already occurred breach of duty with regard to asset management, the family court can order security measures (see Section 1667 Paragraphs 1-3 BGB) or, if the parents fail to comply with their orders, or if their assets are at risk, they can partially or completely withdraw asset management from them (Section 1667 Paragraph 3 P. 4 BGB). The latter is also possible in the event of a breach of maintenance obligations by the parents (cf. § 1666 Paragraph 2 BGB).
Income from the child's assets (not the substance!) Can, after covering the administrative costs, be used for the maintenance of the child and, if equitable, also for the maintenance of the parents and the minor unmarried siblings of the child (§ 1649 BGB). The child's income from work may only be used for maintenance. If the parents acquire movable property with the child's means, the child becomes the owner of the property upon acquisition (§ 1646 BGB).
3.3 Legal representation (§ 1629)
Legal representation means the establishment, modification or termination of legal relationships for the child with third parties; In other words: making or accepting declarations of intent or performing other legal acts for the child (e.g. entering into contracts).
Legal representation includes not only legal acts (such as the conclusion of contracts), but all legal acts that affect an underage child.
Consent to a specific medical treatment or operation, consent to adoption, applications to authorities (e.g. for the granting of training allowances, youth or social welfare benefits or school registration / de-registration).
Legal representation does not mean, however, that by law the parents are then liable to the respective legal partners of their children for the legal acts they undertake. This is because the legal effects of this action (i.e. the resulting authorizations and obligations) only apply to the persons they represent (i.e. to the minors - and not to the parents, for example!), As is also the case with the actions of other representatives (cf. Section 164 (1) sentence 1 BGB). - However, since 1999 the Minors' Liability Restriction Act has limited the liability of minors for liabilities that are based on the action of their legal representatives, i.e. they only have to fulfill these insofar as they are able to do so from assets available when they reach the age of majority (cf. § 1629 a BGB).
Legal representation is a legal authority that parents may or may not exercise. In the event of abuse, only compensation for damages (cf. §§ 1664, 277 BGB) or withdrawal of representation by the family court in accordance with § 1666 BGB and appointment of a nurse in accordance with § 1909 BGB can be considered.
If parents are acting as the legal representatives of their minor children, they must make this clear. If they fail to do so, the legal effects of their actions will affect them.
The parents usually represent the child together (Section 1629 (1) BGB). For the reception proxy, however, it is sufficient to submit the declaration to one of the parents (Section 1629 (1) sentence 2 BGB). However, one parent can expressly authorize the other to act as sole representative for certain matters. A tacit authorization (toleration power of attorney) will only be accepted for less significant legal acts. The law otherwise only recognizes individual representation (Section 1629 (1) sentence 3 BGB) if one parent exercises custody alone by virtue of the law or based on a judicial decision (as in the cases of Section 1680, Section 1678 (1) in conjunction with Sections 1673 , 1674 BGB) or the decision according to § 1628 has been assigned to him. The regulation of Section 1629 (2) sentence 2 of the German Civil Code (BGB), according to which a parent in whose custody a child is in, can assert the child's maintenance claims against the other parent, regardless of whether it is joint custody, is of practical importance acts during an existing marriage, after the breakup of the marriage or in the case of unmarried parents.
3.4. Special regulation for married minors
Since it would make no sense to subject young people who have been declared of age to their parents' right of determination in the area of actual personal care, Section 1633 of the German Civil Code (BGB) regulates that personal care for them is limited to legal representation.
4. Suspension of parental custody (§§ 1673 ff. BGB)
Parental custody of a parent can be suspended if he is actually prevented from exercising it for a longer period of time (if both parents are temporarily prevented from exercising it, see Section 1693) (e.g. in the event of a stay abroad, criminal detention) and if this has been determined by a decision of the family court (Section 1674). Parental custody is suspended due to a legal obstacle if one of the parents is incapable of contracting (Section 1673 (1), Section 104 No. 2) or has limited legal capacity (Section 1673 (2) sentence 1, Section 106). This parent is then not entitled to exercise parental custody (Section 1675). He is only entitled to actual personal care alongside the other parent (Section 1673 (2) sentence 2).
Minor parents cannot hold all 3 elements of parental responsibility; as they have only limited legal capacity according to Section 106 of the German Civil Code and are therefore unable to legally represent their children. However, these parents are not completely excluded from parental custody. Rather, Section 1673 (2) of the German Civil Code (BGB) provides the following regulation:
- They are not entitled to care for property at all.
- Although they have personal custody, they cannot represent their child in any legal acts.
Since these parents care for their children in terms of content, but cannot legally represent them, the terms "actual personal care"Or"actual concern"Or"actual custody”In use.
In the event of disagreement, the minor parent's opinion takes precedence if the child's legal representative is a guardian or carer. Apart from actual personal custody, custody is then generally exercised by the other parent (Section 1678 (1) BGB). If that is not possible because the other parent is e.g. B. has died, the child receives a guardian (Section 1773 (1) BGB). If the parents of a child are not married to each other and the mother is a minor or incapable of contracting, the youth welfare office in whose district the mother has her habitual residence (Section 87c (1) of Book VIII of the Social Code) takes over the guardianship (Sections 1673 (2) , 1675, 1773 (1), 1791c (1) BGB; Section 55 (1) SGB III).
The example of a minor mother shows that this “actual custody” is of real importance. You have the following powers, for example:
- Care, education and supervision,
- First name,
- Determination of residence,
- Definition of religion,
- Regulation of dealings with other people,
- Consent to medical treatments, operations,
- Consent to adoption.
Although the minor mother cannot undertake legal acts that become necessary in these example cases (e.g. the conclusion of contracts) due to her limited legal capacity, but the other parent or a guardian would have to act alone in this regard, this action would be ineffective without her consent. In the event of a disagreement with the other parent who has full custody, his opinion would not be decisive, but instead the only way to make important decisions would be to go to the family court. If there is no other parent with custody, but a guardian (e.g. the youth welfare office), the minor mother could initially always assert herself (see Section 1673 (2) BGB). The guardian would then have to consider whether he should then involve the family court (which, however, will only come into consideration if the child's welfare threat is to be feared).
5. Ending parental custody
Parental custody of both parents naturally ends when the child or both parents die, when the child reaches the age of majority (Section 1626 (1); Section 2 of the German Civil Code) and when the child is adopted by a third party (Section 1755 of the German Civil Code).
One parent's custody ends when the parent dies; it is then the sole responsibility of the other parent (Section 1680 (1) BGB).
In addition, the custody of a parent is terminated, if it z. B. in the case of divorce or separation of the parents is transferred by the family court to the other parent alone (§ 1671 BGB). Parental custody also ends when the family court withdraws custody (Section 1666 BGB).
First version: Prof. Dr. Hans Schleicher, Munich
Revision and update: Prof. Dr. Susanne Nothhaft, Professor of Law at the Catholic Foundation University in Munich.
More articles by Prof. Dr. Susanne Nothhracht in our family handbook:
created on April 22, 2002, last changed on October 31, 2016
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