The German Civil Code Articles referring to the Parental Authority

Compilation made by ARPCC for the use of COLIBRI FEDERATION

ARPCC ref: [ngo984]

The full Civil Code of Germany can be found here:
http://www.gesetze-im-internet.de/englisch_bgb/englisch_bgb.html
(in authorized translation of the German Ministry of Justice)

The full Civil Code of Germany in German can be found here:
 http://www.gesetze-im-internet.de/bgb/BJNR001950896.html

Section 1627
Exercise of parental custody

The parents must exercise the parental custody on their own responsibility and in mutual agreement for the best interests of the child. In the case of differences of opinion, they must attempt to agree.

Section 1628
Court decision in the case of differences of opinion between the parents

If the parents, in a single matter or in a particular kind of matter of parental custody the arrangements for which are of substantial importance for the child, cannot agree, the family court, on the application of a parent, may transfer the decision to one parent. The transfer may be subject to limitations or conditions.

Section 1629
Representation of the child

(1)Parental custody includes the representation of the child. The parents represent the child jointly; where a declaration of intention is to be made to the child, it is sufficient if it is made to one parent. One parent represents the child alone, to the extent that he exercises parental custody alone or the decision has been transferred to him under section 1628. In the case of imminent danger, each parent is entitled to undertake all legal act that are necessary for the best interests of the child; the other parent is to be informed without undue delay.

(2)The father and the mother may not represent the child to the extent that under section 1795 a guardian is excluded from the representation of the child. If the parental custody for a child is held by the parents jointly, then the parent in whose charge the child is may assert maintenance claims of the child against the other parent. The family court may deprive the father and the mother under section 1796 of the representation; this does not apply to the determination of paternity.

(2a)The father and the mother may not represent the child in court proceedings under section 1598a (2).

(3)If the parents of the child are married to each other, then one parent, as long as the parents live apart or a matrimonial matter is pending at court between them, may assert maintenance claims of the child against the other parent only in his own name. A court decision obtained by one parent and a court settlement entered into between the parents also take effect for and against the child.

Section 1629a
Restriction of liability of minors

(1)The liability for obligations that the parents, as part of their statutory power of agency, or other persons entitled to represent, as part of their power of agency, have created with effect for the child by legal transaction or another action, or that have arisen on the basis of an acquisition as a result of death that occurred during the minority, is restricted to the inventory of the assets of the child that are in existence when the child reaches the age of majority; the same applies to obligations arising from legal transactions that the minor under sections 107 and 108 or section 111 entered into with the approval of his parents or for obligations arising from legal transactions for which the parents received the approval of the family court. If the minor who is now of full age relies on the restriction of liability, the provisions of sections 1990 and 1991 for the liability of the heir apply with the necessary modifications.

(2)Subsection (1) does not apply to obligations from the independent operation of a trade or business to the extent that the minor was entitled to do this under section 112, and for obligations from legal transactions that served solely the satisfaction of his personal needs.

(3)The rights of the creditors against co-debtors and those who are jointly liable and their rights arising from a security created for the claim or from a priority notice securing its creation are not affected by subsection (1).

(4)If a member of a community of heirs or an association of persons does not within three months after the minor reaches full age demand the partitioning of the estate or the termination of the association, then in case of doubt it is to be assumed that the obligation arising from such a relationship arose after the minor reached full age; similar provisions apply to the proprietor of a trading business who has reached full age and who does not terminate this within three months after reaching full age. Under the preconditions set out in sentence 1, it is also presumed that the present assets of the person who has reached full age were already in existence when he reached full age.

Section 1631
Contents and limits of care for the person of the child

(1)The care for the person of the child includes without limitation the duty and the right to care for, bring up and supervise the child and to specify its abode.

(2)Children have a right to non-violent upbringing. Physical punishments, psychological injuries and other degrading measures are inadmissible.

(3)The family court is to support the parents, on application, in exercising care for the person of the child in suitable cases.

Section 1631a
Training and occupation

In matters of training and of occupation, the parents take account in particular of the aptitude and inclination of the child. If there are doubts, the advice of a teacher or of another suitable person should be obtained.

 

Section 1632
Surrender of the child; determination of contact; order that child remains in foster care

(1)The care for the person of the child includes the right to require surrender of the child from every person who is unlawfully withholding it from the parents or from one parent.

(2)The care for the person of the child also includes the right to determine contact for the child, even with effect for and against third parties.

(3)Disputes that relate to a matter under subsection (1) or 2 are decided by the family court on the application of a parent.

(4)Where the child has lived in foster care for a long period of time, and where the parents want to remove the child from the foster carer, the family court may, of its own motion or on the application of the foster carer, order that the child remains with the foster carer, if and as long as the best interests of the child would be endangered by the removal.

Section 1633
Care for the person of the child in the case of a married minor

The care for the person of a minor child that is or was married is restricted to representation in the personal matters.

Section 1649
Use of the income of the property of the child

(1)The income of the property of the child that is not needed for the proper management of the property is to be used for the maintenance of the child. To the extent that the income of the property is not sufficient, the income may be used which the child acquires as a result of its work or as a result of the independent operation of a trade or business permitted him under section 112.

(2)The parents may use the income of the property which is not needed for the proper management of the property and for the maintenance of the child for their own maintenance and for the maintenance of the minor unmarried siblings of the child, to the extent that this is equitable, taking into account the property and earnings situation of the persons involved. This power lapses on the marriage of the child.

Section 1671
Living apart and joint parental custody

(1)If parents who have joint parental custody live apart for a period that is not merely temporary, each parent may apply for the family court to transfer parental custody or part of the parental custody to him alone.

(2)The application is to be granted to the extent that

1.  the other parent consents, unless the child has reached the age of fourteen and objects to the transfer, or

2.  it is to be expected that the termination of the joint parental custody and the transfer to the applicant is most conducive to the best interests of the child.

(3)The application is not to be granted to the extent that the parental custody must be organised differently on the basis of other provisions.

 

Section 1684
Contact of the child with its parents

(1)The child has the right to contact with each parent; each parent has a duty and a right of contact with the child.

(2)The parents must refrain from everything that renders more difficult the relationship of the child to the other parent or the upbringing. Similar provisions apply if the child is in the charge of another person.

(3)The family court may decide on the scope of the right of contact and make more detailed provisions on its exercise, including provisions affecting third parties. It may enjoin the parties by orders to fulfil the duty defined in subsection (2). If the obligation in accordance with subsection (2) is considerably violated permanently or repeatedly, the family court may also order custodianship for the implementation of access (access custodianship). Access custodianship includes the right to demand surrender of the child to implement access and to determine where the child is to be for the duration of access. The order is to be time-limited. Section 277 of the Act on the Procedure in Family Matters and in Matters of Non-contentious Jurisdiction applies with the necessary modifications to compensation for expenditure and remuneration of the access custodian.

(4)The family court may restrict or exclude the right of contact or the enforcement of earlier decisions on the right of contact, to the extent that this is necessary for the best interests of the child. A decision that restricts the right of contact or its enforcement for a long period or permanently may only be made if otherwise the best interests of the child would be endangered. The family court may in particular order that contact may take place only if a third party who is prepared to cooperate is present. The third party may also be an agency of the youth welfare service or an association; the latter then determines in each case which individual carries out the task.

Section 1685
Contact of the child with other persons to whom it relates

(1)Grandparents and siblings have a right to contact with the child if this serves the best interests of the child.

(2)The same applies to persons to whom the child relates closely if these have or have had actual responsibility for the child (social and family relationship). It is in general to be assumed that actual responsibility has been taken on if the person has been living for a long period in domestic community with the child.

(3)Section 1684 (2) to (4) applies with the necessary modifications. The family court may only order access custodianship in accordance with section 1684 (3) sentences 3 to 5 if the prerequisites of section 1666 (1) are met.

Section 1686
Information on the personal circumstances of the child

Each parent may, in the case of justified interest, demand information from the other parent on the personal circumstances of the child, to the extent that this is not inconsistent with the best interests of the child. Disputes are decided by the family court.

Section 1687
Exercise of joint parental custody when the parents live apart

(1)If parents who have joint parental custody live apart not merely temporarily, then in the case of decisions in matters the arrangement of which is of substantial significance for the child their mutual agreement is necessary. The parent with whom the child, with the consent of the other parent or on the basis of a court decision, customarily resides has the authority to decide alone in matters of everyday life. Decisions in matters of everyday life are as a rule such as frequently occur and that have no effects that are difficult to alter on the development of the child. As long as the child, with the consent of this parent or on the basis of a court decision, resides with the other parent, the latter has the authority to decide alone in matters of actual care. Section 1629 (1) sentence 4 and section 1684 (2) sentence 1 apply with the necessary modifications.

(2)The family court may restrict or exclude the powers under subsection (1) sentences 2 and 4 if this is necessary for the best interests of the child.

Section 1687a
Power to make decision of the parent without parental custody

For each parent who does not have parental custody and with whom the child resides with the consent of the other parent or of another person with parental custody or on the basis of a court decision, section 1687 (1) sentences 4 and 5 and (2) apply with the necessary modifications.

Section 1687b
Parental custody powers of the spouse

(1)The spouse of a parent with sole parental custody who is not a parent of the child has the power, in agreement with the parent with parental custody, to make joint decisions in matters of the everyday life of the child. Section 1629 (2) sentence 1 applies with the necessary modifications.

(2)In the case of imminent danger, each spouse is entitled to undertake all legal act that are necessary for the best interests of the child; the parent with parental custody is to be informed without undue delay.

(3)The family court may restrict or exclude the powers under subsection (1) if this is necessary for the best interests of the child.

(4)The powers under subsection (1) do not exist if the spouses live apart for a not merely temporary period.

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Section 1697a
Principle of best interests of child

To the extent not provided otherwise, the court, in proceedings on the matters provided for in this title, makes the decision that, taking into account the actual circumstances and possibilities and the justified interests of those involved, is most conducive to the best interests of the child.