Who becomes guardian if both parents die?

Parental custody – what is it actually?

Parental custody” is a central concept in family law and child law. However, many parents do not know exactly what rights and obligations they actually have towards their children. At the same time, there is a wide variety of terms in the area of child law, some of which have similar meanings, which can confuse even legal experts. So let’s first try to clarify things a little:

As long as they are minors (i.e. until they reach the age of 18), children are generally under the joint parental care of the father and mother. Where no legal paternity relationship exists – because no presumption of paternity, acknowledgement of paternity or action has established such a relationship – the mother is the sole holder of parental custody.

The term “parental custody” covers all of the parents’ inalienable and non-transferable rights and duties in relation to the child. Parents cannot simply give up these rights and duties or transfer them to third parties. However, parental custody can be withdrawn by the KESB in the best interests of the child under certain circumstances, e.g. if the parents abuse or neglect the child or are clearly unable to protect the child’s welfare. In these cases, the child is often placed with foster parents (so-called “external placement”). However, the withdrawal of parental care is a very drastic measure that is normally only taken in exceptional cases where there are no viable alternatives.

Colloquially, parental custody is often also referred to as “custody“. However, this term is imprecise (and is therefore not used by the law), because parental custody not only includes or grants rights, but also creates obligations: With a view to the best interests of the child, the parents direct – in principle jointly, i.e. by agreement or compromise – its care, upbringing and education. They make the necessary decisions and represent the child in dealings with third parties. As the minor child has no or only limited capacity to act, i.e. can only establish certain rights and obligations or none at all through their own actions, they require the consent of their parents for most transactions. The child owes the parents obedience; the parents, on the other hand, grant the child the freedom to shape its life in accordance with its maturity and take its opinion into consideration.

Parental custody therefore covers several areas:

• The care is the care of the child’ s physical existence, which includes, for example, food, hygiene and clothing. Parents can therefore determine the child’s diet and style of clothing, for example, but they must always do so in the interests of the child’s welfare.
• The education of a child means promoting and protecting its physical, mental, moral and religious development. Parents should try to develop socially desirable behavior in their children in these areas by teaching them intellectual and social skills as well as basic etiquette.
• Furthermore, the parents should provide the child with an appropriate education and vocational training in line with his or her abilities and aptitudes. education according to his or her abilities and aptitudes. This is in view of the fact that parental care does not last forever, but decreases in intensity as the child grows older and ends when the child reaches the age of 18. From then on, the child should be able to support itself (or complete its initial education) independently, through its own efforts .
• Parental custody also includes the right to determine the child’splace of residence. The child resides with the parents or with the parent who has custody of the child (see below). The child may not leave the home without the parents’ consent. Nor may the child be taken away from them by third parties without a legal basis.

If the parents are separated, the question of where they live quickly becomes complicated: The concept of “custody” refers to the de facto cohabitation with the child in the home. In particular, it covers the day-to-day care and upbringing of the child. If the parents exercise joint parental care, the court can order sole custody of one parent or alternating custody. However, the non-custodial parent and the child are each entitled to personal contact with each other, for example in the form of visiting rights in the form of visiting rights.

• Also related to parental custody is child maintenance. child maintenance. Maintenance is provided through care, education and monetary payments. If parents and children live together, child maintenance is normally provided through care and upbringing (so-called “maintenance in kind“). If parents and children are separated, however, financial maintenance (consisting of cash maintenance and care maintenance), i.e. a monetary payment (usually monthly) to be made by the non-custodial parent towards the child’s care, upbringing and education costs.

Who becomes guardian when the parents die and what role does the KESB play?

This shows that the parents have many rights and obligations towards their child. The gap is just as large when a minor child loses its parents: If the parents exercise parental custody jointly and one parent dies, the surviving parent is entitled to parental custody by law. The KESB is not involved and the child goes to the surviving parent. If the parent who was entitled to sole parental custody dies, the KESB transfers parental custody to the surviving parent or appoints a guardian for the child, depending on what is deemed more suitable for safeguarding the child’s welfare.

In other words, the KESB becomes active when the parent who had sole parental custody dies. If a child is not under parental care, the KESB appoints a guardian. It will take the child’s best interests into consideration and will ask the child who their closest caregivers are and who they would like to live with.

The child under guardianship has the same legal status as the child under parental care, and the guardian has the same rights as the parents. The content of parental custody described above is therefore transferred to the guardian in the case of a child who no longer has parents. Incidentally, the same also applies if the parents are unable to exercise care for the child in its best interests – e.g. due to permanent absence, illness or disability – or if they are deprived of it.

It is clear that a guardian will never have the same close relationship with a child as its parents. This is why the law provides for a special procedure to protect the child: The provisions of adult protection, namely on the appointment of the guardian, the management of the guardianship and the involvement of the adult protection authority, are applicable by analogy. This means, among other things, that the KESB must take into account the needs, welfare and – where appropriate – the wishes of the child when selecting the guardian. The guardian is also obliged to report regularly to the KESB and give an account of his or her activities. The KESB can also issue instructions to the guardian or discipline him or her in the event of misconduct, or remove him or her if necessary.

What precautions can parents of underage children take?

Of course, it is not easy to think about death. It is perhaps even more difficult to think about what would be best for your children in this case. Nevertheless, it makes sense: especially for single parentsbecause the other parent does not automatically take care of the children. But parents with joint custody should also plan what will happen if, for example, they are involved in an accident together.

For such situations, it is advisable to draw up a so-called custody order should be drawn up. This can specify to whom the KESB should transfer parental rights and duties in the event of the parents’ death: Who – apart from the parents – is a particularly close attachment figure and confidant for the children, and also has the capacity and the will to provide them with a stable and beneficial environment in the long term? These are often stepparents, grandparents, adult siblings, other relatives or simply close friends of the family. In the case of siblings, it often makes sense to place them with the same guardian so that they can stay together. It is also important to talk to these people about whether they are willing to take on the responsibility of guardian. It is also possible to state several preferences or priorities in a custody order:

Suggested wording:

1. If my children are not yet of age (and the other parent is incapacitated), I wish the following person to be appointed as their guardian and the children to be placed in their care: FIRST NAME NAME, RELATIONSHIP (e.g. grandmother), born on (DATE OF BIRTH), from (HOMELAND), residing at (ADDRESS).
2. Should the person named in section 1 above not (be able or willing to) accept guardianship and care for any reason, I wish the following person to be appointed as substitute guardian and the children to be placed in his/her care: FIRST NAME NAME, RELATIONSHIP (e.g. uncle), born on (DATE OF BIRTH), of (HOMELAND), residing at (ADDRESS).
3. If neither the person named in section 1 nor the person named in section 2 above accepts guardianship and care, I wish the following person to be appointed as substitute guardian and the children to be placed in their care: FIRST NAME NAME, RELATIONSHIP (e.g. godmother), born on (DATE OF BIRTH), from (HOMELAND), residing at (ADDRESS).

You should also consider who should administer the inheritance you leave to your children until they reach the age of majority. You can also appoint another person for this purpose, including lawyers, notaries, trustees or banks. However, you should regulate everything concerning the inheritance in a formal will.

For the KESB, the most important guideline is always the (objectively understood) best interests of the child. Therefore, a custody order that reflects the subjective assessments or wishes of the parents is not binding for the KESB. Nevertheless, it will take them into account if the content is in the best interests of the child and there are no other important reasons – such as the rejection or lack of suitability of the proposed persons – to the contrary. If the KESB wishes to deviate from your wishes and proposals, it must be able to provide sound reasons as to why it intends to do so.

The custody decree is not explicitly regulated by law. Unlike advance directives, living wills, wills or inheritance contracts, it is not subject to any mandatory formal requirements. Nevertheless, for reasons of proof, it should be drawn up in writing and signed and dated. Parents with joint custody should ensure that they coordinate their custody orders, i.e. in particular avoid making contradictory statements and proposals. To ensure the best possible traceability and implementation by the KESB in accordance with your wishes, you should give reasons for your choice and provide the personal details and contact details of the proposed guardian.

Finally, you should make sure that you can find the custody order in an emergency: it is best to keep an original copy with your personal files at home, give a copy to your preferred guardian and ask your home municipality and/or the local KESB whether you can deposit a copy if necessary.

You might also be interested in:

• Guardianship provision – guardian in case of death
• Death and no relatives left – who is responsible?
• KESB – What is it and when does it come into play?