Guardianships/custodianships

Official guardianships

A guardian is the legal representative of a minor appointed by the family court. The guardian exercises parental care for the minor instead of the parents.

The appointment of a guardian becomes necessary if, for example, the parents can no longer exercise custody because they are deceased or have been deprived of custody. A person with legal capacity, several people (e.g. a married couple), the youth welfare office or an association can be appointed as a guardian.

Guardianship is ordered ex officio by the family court:

• if a minor is not under parental care (for example, because the mother is unmarried and a minor),
• if the parents are not authorized to represent the minor (for example, because the family court has withdrawn parental custody from them or parental custody is suspended because the parents are unknown),
• if the marital status of the minor cannot be determined (foundling),
• during the adoption of a minor.

The guardian has the right and duty to care for the person and property of the ward, in particular to represent the ward. If the guardian has not been appointed by the parents in their will or if there is no suitable individual to act as guardian, the family court must select the guardian.

Official guardianship refers to the comprehensive legal representation of a minor by the relevant youth welfare office.

A distinction is made between statutory and appointed official guardianship:

• The statutory official guardian is the youth welfare office in the case of children not born in wedlock, as long as the mother is still a minor and during ongoing adoption proceedings.
• The family court can decide (appoint) an official guardianship if there is no other person suitable as a guardian.

The youth welfare office assigns the actual duties of the official guardian to an employee.

Official guardianship

The person under parental care is assigned a guardian for certain matters, i.e. individual matters of parental care (e.g. right to determine residence, right to apply for social benefits, health care) are assigned to a guardian.

In contrast to guardianship, however, not all parental care is transferred.

In the case of official guardianship, the youth welfare office is appointed as guardian by the family court. The most common form of official guardianship is supplementary guardianship, i.e.

• supplementary guardianship regarding the exercise of the right to refuse to testify in criminal proceedings or
• supplementary guardianship due to an intervention in custody by the family court.

The youth welfare office transfers the actual performance of the duties of the official guardian to an employee. The same principles apply to the exercise of official guardianship as for official guardianship.