Recently, parents seem to be thinking about their possible early demise, because I have been getting this question more frequently: “What will happen to our children if we, mother and father, were to die?”
I don’t know why people are so full of doom and gloom, especially now in spring when the flowers are blooming, the rabbits are jumping, the days are getting longer and warmer, and the parks are full of, oh wait, I guess I do understand why people are a bit cautious nowadays and want to plan ahead.
Before addressing the issue, let me remind you that my blog is full of advice on German law and that I really appreciate it if you were to support this blog. This question falls into the realm of child custody law, on which I have a set of FAQ and a few other articles.
First of all, I am a German lawyer (albeit currently not practicing as an attorney), so I will only describe the situation under German law. German law applies if the child or children has/have their habitual residence in Germany, regardless of the citizenship of the child or the parents.
Let’s start with the simple scenario: A child has two parents and both parents have custody. In this case, if one parent dies, the remaining parent will have sole custody (§ 1680 I BGB). Easy peasy, no problem here.
Second scenario, already more complicated: A child has two parents – and they need to be legal parents, so step-parents don’t count, unless they have adopted the child! -, but only one parent has legal custody. This is often the case when the parents are not married, but it may also be the result of a previous custody decision by a court. Now, if the custodial parent dies, the Family Court will usually grant custody to the surviving parent (§ 1680 II BGB) – unless the welfare of the child requires otherwise.
Except in grave cases of child abuse where the surviving parent can/must be disqualified, other reasons could be if the surviving parent has been absent from the child’s life for a long time, or if there is another person in the child’s life who has already been assuming the role as parent, without legally being one. The latter is typically the case if the child is growing up with a step parent. (These are usually also the most contested cases.)
How the case will play out greatly depends on the will of the child, too. The older it is, the more weight will be given to the child’s wishes. Especially if remaining with the step parent will mean living in the same house and going to the same school, whereas moving to the biological parent would mean a move to another continent, the biological parent often faces an uphill battle.
Now to the worst-case scenario: Both parents die at the same time or the only surviving parent dies. In that case, the Family Court will appoint a guardian for the child (§ 1773 I BGB).
Some people assume that guardianship will automatically go to uncles, aunts, grandparents or other relatives of the child, but that’s not the case. The court will investigate who is willing and able to carry out that job, it will ask the child (depending on its age), and if there are more “applicants” for the child, the court will first try to mediate, but ultimately it will have to make a decision. Obviously, close relatives are always an option, but the court can also consider other people, like a teacher or a neighbor or the parents of the child’s best friend.
Again, the wishes of the child itself are more relevant, the older it is. Once the child is 14, it has a veto right (§ 1778 I no. 5 BGB).
In my experience, the toughest cases are those where two family clans (maternal and paternal) are fighting over who is better suited to take care of the child. This seems to happen more when the child is the only grandchild (and when the grandparents never approved of the marriage anyway and always hated the other clan). Oh, I could tell you stories where people go all-out nasty and you just want the child to run away Tom-Sawyer-style.
And that leads, as if I had planned it that way, to the culmination, where parents ask, worriedly: “Can we determine who will be the guardian of our child once we die?”
The answer is: Yes, with some restrictions. The way to do that is to set up a last will on child custody (“Sorgerechtserklärung”), which according to § 1777 III BGB is subject to the same formal requirement as a testament (see no. 4 of my FAQ on inheritance law in Germany). I always recommend that it not only includes the name of the intended guardian, but also a few reasons for your decision. This will come in handy in case there will be a dispute.
In this last will, the parents can also explicitly exclude persons from being appointed as guardian for their child (§ 1782 I BGB).
Obviously, if both parents are alive, it would make sense if they could agree on a guardian. However, this is sometimes not possible. In that case, each parent (as long as they have legal custody) can set up his/her own last will on child custody, and the one of the parent who dies first will become irrelevant. Because the last will of the last surviving parent is the decisive one (§ 1776 II BGB). This also makes sense, as many years can pass between the deaths of the parents, so the surviving parent will gain information and insight about the child and the potential guardians that the predeceased parent couldn’t have had.
Oh, one last thing: Cats and dogs don’t fall under custody law. You can dispose of them like chattel. Just mention in your testament who should receive them.
Links:
- All my articles on German law. More questions are always welcome, but I would appreciate your support to keep this blog active.
- The photos are from Brazil and Bolivia – because I am a cool lawyer, who likes to go and find deserted cemeteries in the mountains.
- Actually, if you like photos of cemeteries, you will find many more here.
The Happy Hermit 
You ARE a cool lawyer and the photos are appreciated. 😆
Thank you, Ma’am!
The first two photos are in Milluni, in the mountains in Bolivia. It’s an eerie place, at the foot of enormous mountains. A large cemetery in the middle of nowhere, far from any town. I discovered it during a long hike – https://andreasmoser.blog/2017/03/09/adventure/ – and later found out about its history: https://andreasmoser.blog/2017/04/14/milluni/
The second photo, the one in the jungle, was in Chapada Diamantina in Brazil. It’s a landscape that reminded me of the Grand Canyon, just in green. There used to be diamond mining, meanwhile long terminated, but a few very tiny settlements have remained. Just a few houses, really. And behind one of them, there was this decaying cemetery.
I haven’t written the article about the 3-day trek through that valley yet, but here are a few short stories, photos and videos from Chapada Diamantina: https://andreasmoser.blog/tag/chapada-diamantina/
And the last photo is from Bolivia again. Another long hike, from Sacaba to a lake on the other side of the mountains. Up there, in the mountains, I found this cemetery in a small village. As I was taking photos, a guy came, quite agitated, and told me that it was forbidden to take photos. He said he was the mayor, asked to see my passport and asked lots of questions. It was surprising, because everywhere else in Bolivia, people are very friendly and welcoming. But he told me that it’s better if I leave (which was bad because it was the only village where I could have gotten lunch), and he followed me until I had walked out into the fields.
Late in the night, as I returned home to Cochabamba, my flatmate said: “Man, you hiked straight through drug mafia territory.” Well, another article I still have to write.
Actually, I like cemeteries so much, there are many more: https://andreasmoser.blog/tag/cemetery/
Ooops! Yeah, you’re lucky you left that last cemetary and didnt wind up a permanent resident.
Cemeteries are cool. All the history. And they’re quiet.
Following up on your last point, I often treat them as parks.
In Targu Mures, this was a really good spot to read: https://andreasmoser.blog/2015/08/10/the-soviet-military-cemetery/
Oh, and one day I need to write about the cemetery in Vienna, WOW!
I enjoy reading of your travels. I feel like I’m traveling along with you.
I’ve only had altitude sickness once, when visiting Denver, Colorado. I was 8 years old and I fainted. When I traveled through Colorado as an adult I didn’t have any problem. Of course, the Rockies aren’t the Andes.😂
-Angie (no ma’am please, I’m only 52🤣🤣)
I can’t believe this isn’t common information. However, I would think the state would exhaust all next of kin, like they do in estate law; prior to taking custody of the children.
Well, it’s not quite estate law because children aren’t property.
Obviously, the next of kin are always considered, but quite often, the children feel much better at a friend’s family than moving to an uncle whom they saw twice a year or to grandparents who are too old.
Oh, Andreas. I fear that happens far less often than you might think.
Thank you so much. Being a foreigner, this question is there in my mind ever since my son is born.
… which proves that children are a constant source of concern. ;-)
My question is in the context of an international family with Multiple-citizenships living in Germany (Italian/Brazilian citizenships), in the situation where both parents die, should a family member who doesn’t live in Germany be able to apply for the Guardianship of the children?
Would the family be able to put on a Will that the guardian should be a family member who lives abroad? In this case the family member would relocate the children to his country of residence (e.g Canada)
Of course you can also appoint someone living in another country. The appointed guardian would need to be able to cooperate with the German authorities and would ideally be able to come to Germany immediately.
Depending on the age of the child, moving to another country can be relatively uncomplicated (in the case of younger children) or more complicated (if they are already in school and have a circle of friends, etc.).
But keep in mind that in reality most parents don’t die at the same time, so the surviving parent can change any last will after the other parent dies. (Or before that, without telling them.)
The most important thing is to speak with the person whom you have in mind as a guardian, so they won’t be surprised and will know what to do.
Hi there
so my friends neice is a Syrian Refugee the parents have abandoned her in germany.
The grandparents my friends are here in Vancouver Canada
How do they get their grandaughter to Canada she is in a Foster home in Germany
They are elderly and not sure of the process
This is such a beautifully complicated case that it makes me regret that I took a break from practicing law. But I guess your friends don’t want to wait one or two years until I will be available to represent them.
The first thing would be to find out what the legal status of the niece is, both regarding custody/foster care and immigration.
The next step would be to try to come to an agreement with the parents and the foster home. (It would still need to be approved by a court, but going to court with all parties in agreement would increase the chances of success.)
Another important factor will be how much contact the grandparents have with the niece. The more, the better. And whether there are other relatives willing to take care of her.
If your friends want a proper consultation, talking them through the strategy step by step, they are welcome to contact me, of course.