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 ward in place 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. Persons with legal capacity, several persons (for example a married couple), the youth welfare office or an association can be appointed as guardians.

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 entitled to represent the minor (because, for example, the family court has deprived them of parental care or parental care is suspended because the parents are of unknown residence),
• if the minor's marital status 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 by will or if a suitable individual is not available as guardian, the family court shall select the guardian.

The term "official guardianship" refers to the comprehensive legal representation of a minor by the responsible youth welfare office.

A distinction is made between legal and appointed official guardianship:

• The youth welfare office is the legal official guardian for children who are 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 guardian.

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

Official guardianships

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 the entire parental care is transferred.

In the case of an 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 with regard to the exercise of the right to refuse to testify in criminal proceedings, or
• supplementary guardianship due to an intervention in custody rights by the family court.

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