Do parents own their children
Table of Contents
- We already have the youth welfare office - why another guardian?
- How and why does a child get a guardian?
- What rights do I have as a parent under guardianship? And what is the difference between guardianship and parenting?
- How is a guardian selected?
- Who can become a guardian or supplementary carer?
- What tasks, duties and rights do guardians have?
- As a parent, what can I do if I disagree with the guardian or his or her decisions?
- What is supplementary custody?
1. We already have the youth welfare office - why another guardian?
In child and youth welfare there are several people who support parents and their children. They include the skilled workers of the youth welfare office (ASD), the foster child services (PKD) and the educators (or carers) in residential groups. The different professionals also have different tasks; z. For example, the ASD is mostly responsible for help planning, while the foster child service is often responsible for advising and training the foster parents.
Although it often happens that a guardian - like the ASD and Foster Child Service - is an employee of the youth welfare office, he (or she) has a special role. He is only responsible for very specific children and young people, similar to parents, but for all decisions on important matters in the lives of these children and young people. # “Some children or adolescents do not have a guardian, but a complementary carer who only takes part in the care. Question 8 explains in more detail what supplementary custody is.
2. How and why does a child or young person get a guardian?
A guardian (female guardian) is appointed by the family court. This means that the family court instructs a person, an association or the youth welfare office to take care of people and property for a child or young person. In everyday language, there is usually no mention of caring for people and property, but only of "custody". But it is not v. a. about a right, but about responsibility and duties towards the child.
The prerequisite for the appointment of a guardian is that the parents do not have the custody (custody). This can be the case, for example, if parents cannot be found or cannot be reached. But it can also be that a court has decided that parents are no longer allowed to decide for their child. It is provided by law that parents can be withdrawn from custody if they cannot or do not want to avert a risk to their child, e.g. by using help. The background can be, for example, a mental illness or a very difficult family or personal situation.
3. What rights do I have as a parent under guardianship? And what is the difference between guardianship and parenting?
You remain a parent even if your child has a guardian. The most obvious difference is that guardianship ends when your child turns 18, you remain parents for life.
This is also shown by the fact that you as parents retain duties and rights, even if a guardian has been appointed. Very important: Regardless of personal custody and guardianship, you retain the duty and the right to “interact” with your child, i.e. to have contact (§ 1684 BGB) in order to maintain and develop your relationship with him. Not only does this mean you can visit your child, but interaction can also include phone calls, letters, and social media exchanges. The guardian has the right to decide on the frequency, duration and structure of the contacts, but must take into account the rights of access of the parents and the child (if you do not agree with his decisions, see also question 7).
Despite a guardianship, you are also liable to maintenance as a parent and your child will later be liable to you as well as your heir.
As a parent, you also have the right to information about the development and situation of your child. This means that the youth welfare office has to tell you how your child is doing and has to inform you about important events. Furthermore, as parents, you decide whether your child can be adopted even if you have a guardianship (Section 1747 BGB). The guardian may not change the religious affiliation of the child that you have determined (Section 3 KerzG).
Guardianship also differs from parenting in that guardianship is in the vast majority of cases on a professional basis. Of course, the guardian builds a relationship with the child or young person entrusted to him, but it cannot be compared to relationships between relatives or even the relationship between parent and child. The advantage of professional guardianship is that the guardians often have a lot of experience and a large professional environment that can help even in difficult situations. In the long term, however, it is very important for children and adolescents, despite guardianship, that parents are interested in their development and maintain a relationship with their child even in difficult times.
4. How is a guardian selected?
The family court selects the guardian. In the past it was much more common for parents to die and children therefore needed a guardian. The regulation, which is still valid today, therefore provides that only the "presumed" will of the (deceased) parents and, for example, the opinion of the relatives of the child are taken into account when selecting the guardian (Section 1779 BGB).
Today the situation has changed and the children themselves are given better legal consideration. According to future law, the family court should therefore v. a. observe the will of the child and his entire situation, but secondarily also the will of the parents (§ 1779 BGB-E, see the reference above to the guardianship reform).
If your child or you as parents want a certain person to become a guardian, you can and should inform the family court, possibly your lawyer or the youth welfare office in advance. The family court can z. B. appoint a relative of the child to be the guardian or supplementary caregiver, such as the grandmother or grandfather. It is also possible that an unrelated person who is close to the child and willing to do so could become a guardian. However, each person can only be selected and appointed if the family court deems them suitable to take over the guardianship.
Incidentally, parents who have custody have the right to appoint a guardian in the event of their death or to exclude certain persons as guardians. A person named by the parents may only be overlooked in exceptional cases, for example if the adolescent over 14 objects (Section 1778 BGB).
5. Who can become a guardian or complementary carer?
With rare exceptions, the following applies: Any person of legal age can become a guardian or supplementary carer. However, a distinction must be made between
- the voluntary guardianship,
- the club guardianship and
- the professional guardianship.
If relatives or close people of a child become guardians, e.g. the grandparents, it is a matter of voluntary guardianship. Very often, however, an employee of the youth welfare office, sometimes also an employee of an association, becomes a guardian (see question 1) because a suitable individual who is willing to be a voluntary guardian is not available. A person who is self-employed as a professional guardian is appointed less often. Official, association and professional guardians perform their duties professionally. Most of them have a socio-pedagogical or administrative training.
6. What tasks, duties and rights do guardians have?
A guardian makes important decisions for a child that the parents normally make. The guardian must always discuss his decisions with the child in an age-appropriate manner. Guardians have to give their consent, for example, if a young person wants to take part in a school trip, if an operation is due or if a young person starts an employment relationship. Guardians also have the right to determine the frequency, duration and structure of parent-child visits. In doing so, they must take into account the rights of access of parents and children (§ 1684 BGB), but also the situation of the foster parents or the facility in which the child lives (for discrepancies and disputes about access regulations, see also question 7).
The guardian should "promote and guarantee the care and upbringing of the minor" (§ 1800 BGB). Guardians therefore apply, for example, to help with upbringing, e.g. B. that the child can live in a residential group or receive special support from a curative educational day-care center.
In order for a guardian to know what they can do for a child (or young person), what kind of support it needs, for example, they must know something about the child and also about their wishes. Therefore, guardians are obliged to have regular contact with the child / young person, usually once a month (Section 1793, Paragraph 1a of the German Civil Code).
Through the meetings, the guardian gets to know the child or adolescent so that she can represent their interests well when planning help. This is to ensure that the child or young person is sufficiently involved in the planning of the assistance and that his or her views and wishes are not neglected. Representing the interests of the child / young person also means that a guardian can, if necessary, file an objection or sue if the youth welfare office does not approve suitable and necessary help (e.g. curative educational measure). This also applies to official guardians, even if they work in the same authority as the specialists of the General Social Service (ASD) who may have refused help.
In addition to the guardians, parents can and should be invited to the help plan discussion and their opinions heard, even if they do not have custody. This is not required by law, but the experts support it. If parents still have part of the custody (see question 8), got to the youth welfare office will involve them in the planning of the assistance (Section 36 (1) of Book VIII of the Social Code).
7. As a parent, what can I do if I disagree with the guardian or his decisions?
If you and / or your child disagree with the decisions made by the guardian, it is worthwhile to talk to the guardian as a first step. You may find a solution together or the guardian will explain to you how a particular decision was reached. If the conversation does not go to your satisfaction, you can discuss your concerns in the help plan conversation. Your child, the ASD employee, the guardian, the educator and you sit together in the help planning discussion; sometimes other people as well. Problems are discussed here, solutions are found together and goals are formulated. The results of the help plan discussion will then be recorded in the protocol that will be sent to you. If you still have part of the custody, you are legally entitled to take “assistance” into the help planning conversation (§ 13 SGB X). The support person can be a good friend, a relative or another specialist (e.g. an ombudsperson) who will support you in the help planning discussion. If you do not have custody, you can still discuss with the youth welfare office that you would like to bring an assistant with you.
If your concern is not taken into account in the help planning discussion, you can look for support outside of help planning, e. B. at an ombudsman's office. Ombudsmen offer advice and support for parents and their children if they do not feel sufficiently involved by the youth welfare office or if there are conflicts with the guardian. The ombudsperson will work with you to find a solution to your problem, always taking the best interests of the child into account. She can give you tips on how to resolve the conflict on your own or refer you to other people to contact. In principle, there is also the possibility that the ombudsperson will accompany you to the help planning discussion, if you wish. Ombudsmen in your area.
Finally, you can also turn to the family court or the Rechtspflegerin. If there are disagreements with regard to the contact regulations and visits of your child that cannot be resolved otherwise, you can apply to the court for contact regulations. The guardian must also adhere to a court regulation. Even if you have the impression that the guardian is not acting in the best interests of your child, you can turn to the family court. The administration of justice is responsible. The Rechtspfleger will hear you about your complaint, possibly also the child and the guardian. If the family court comes to the conclusion that a guardian is violating the child's interests, the child may be ordered to do otherwise. A guardian will only be released in exceptional cases.
8. What is supplementary care?
In contrast to the guardian, the supplementary carer only takes on part of the care for a child. This can only be asset management, for example. The family court often assigns three areas to a supplementary caregiver: health care, the right to determine the place of residence and the right to apply for help with upbringing. If, for example, the family court appoints a supplementary carer only for the right to determine the right of residence, she will decide on the child's center of life. The parents reserve the right to make decisions regarding the choice of a day care center, school, the support of the child in therapy, treatment by a doctor or joining an association. Depending on the child's level of development, parents (but also the guardian) must involve the child (Section 1626 of the German Civil Code). If the child lives in a foster family or facility, however, it makes sense and is also legally provided for the foster parents or educators to make decisions in everyday matters, e.g. about doing homework or using the computer (Section 1688 (1) BGB ).
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