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 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 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.
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