Whereabouts of a child with a caregiver

You are a caregiver and the biological parents want to take the child back with them? Then you can apply to the family court for the child to stay with you.

Not every child grows up with his biological parents or with a biological parent. Neglect, domestic violence or a serious illness of a parent can be conditions that severely limit the best interests of the child. Under certain conditions, a child can then be placed with a caregiver or a foster family. Often it also comes to family care that parents give their child for an indefinite period of time in the care of relatives, such as the grandparents.

As a caregiver, you help to care for the well-being of the child entrusted to you and to strengthen it. If the conditions in the family of origin of your foster child do not improve or otherwise in agreement with the parents, the child can stay with you permanently. If the parents do not (or no longer) agree, you can apply to the family court for a stay order. The family court orders the stay with the caregiver if and as long as the child's well-being would be endangered by the removal from the caregiver.

If the conditions for issuing a stay order are permanent, the court must also take into account the child's need for continuous and stable living conditions in its decision as part of the child's best interests.  

If there is an urgent need for an immediate judicial settlement and a final decision is not yet possible, the court can also decide this as a provisional measure by way of an interim injunction.

Note that the rights of the child's parents have a high priority. Therefore, even during the time when the child is not cared for by them, they are entitled to advice and support as well as promotion of the relationship with their child. The aim is to improve the conditions in the family of origin in such a way that the parents can raise the child themselves again, or at least to promote their relationship with the child and the understanding of the child in such a way that a different life perspective that corresponds to the best interests of the child and is designed for the long term can be developed by mutual agreement. The right and duty of parents to deal with their child also applies if he or she lives with a caregiver.

The basis of the court decision is the so-called "child welfare principle". The decision is therefore not based on the subjective wishes of the parents or caregiver. Rather, it must be ensured that the child is only taken away from the foster family by the parents if this does not cause any harm to the child through a relationship breakdown.

No documentation is required.

Forms: none
Online procedure possible: no
Written form required: yes
Personal appearance necessary: yes


Preconditions

You have taken in a child and would like to apply for the child to remain in your family. For the requested court decision, the following criteria must be met:

  • The child has been living in your family for a long time. Whether this is the case is assessed on a case-by-case basis, taking into account, inter alia, the age of the child,
  • the parents want to take the child away from you and
  • the removal from the foster family by the parents would endanger the well-being of the child.

If you want the child to remain in your family permanently, the following criteria must also be met for such a court decision:

  • The parents have not sustainably improved their educational conditions,
  • it is very likely that there will be no improvement in the educational conditions of parents in the future and
  • the permanent residence of the child in your family is necessary for his or her best interests.

Please note: The so-called "child welfare principle" is decisive for the assessment of your application. In particular, the age of the child, his relationships and attachments at the time of the decision and his history are taken into account.

Related Links

  • § 1632 Civil Code (BGB)
  • §§ 186 et seq. Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (FamFG)
  • § 1697a paragraph 2 of the German Civil Code (BGB) Principle of the best interests of the child
  • § 37 Eighth Book of the Social Code Children and Youth Welfare Act Advice and support for parents, cooperation in helping outside one's own family
  • As a caregiver, you apply to the family court for the child to remain in your family.
  • The court sends the application to the parents and the Youth Welfare Office for information and comment. Furthermore, it appoints a procedural counsel ("lawyer of the child") for the child, who supports the child in the proceedings and represents his interests.
  • The court hears the child in the presence of his or her procedural counsel and gets a personal impression of the child. In addition, the court will hold a discussion meeting in a timely manner. In the appointment, the parents and the caregiver are personally heard and the Youth Welfare Office and the procedural counsel take a position. It will also discuss what assistance may be needed and whether an amicable settlement can be found.
  • As far as necessary for the decision, a further investigation of the facts takes place, for example by interviewing other persons or by obtaining information or an expert opinion.
  • The family court decides by decision on whether the child remains in the foster family.
  • Pending the final decision, the court may take a provisional measure in particular a temporary stay of the child with his or her caregiver by way of an interim injunction due to an immediate need for judicial regulation.

Responsible for the content
Lower Saxony Ministry of Justice

Last update or date of publication
10.11.2020