Adopting a child was your first choice

Adoption - legally

The adoption law of the Federal Republic was fundamentally redesigned in 1977. Since then it has seen only a few changes, most recently on the occasion of the reform of the entire child rights law in 1998. The new regulations essentially concerned the prosecution of illegal practices in adoption placement, in particular the adoption of foreign children, and - based on a decision by the Federal Constitutional Court - the strengthening of the Participation rights of fathers who are not married to the mother of the child.

The material adoption law, in which the requirements and effects of an adoption are regulated, is part of the family law provisions of the German Civil Code (Sections 1741 to 1766 BGB). There are also some special regulations for the adoption of adults (§§1767 to 1772 BGB). Competence, procedural and sanction regulations can be found in a separate adoption mediation law (see: Adoption mediation).

history

The millennia-old legal institution of adoption was primarily an instrument of alternative family formation in favor of childless couples or single people into the 20th century, in order to provide them with an heir who would take over the house or yard, business or property or - often more importantly - the family name continues, the "gender" receives. Only since the beginning of the last century has an adoption been intended to show “destitute but naturally gifted children a great benefit in both material and spiritual terms”, that is, the interests of children are given greater weight. Today the aspect of helping orphaned children who are actually or socially orphaned has come to the fore in almost all legal systems worldwide. The concerns of the adoptive parents should only play a subordinate role. As a general clause, the introductory provision of our adoption law therefore states that adoption as a child is only permissible "if it serves the best interests of the child and it is to be expected that a parent-child relationship will arise between the adoptive person and the child" ( §1741 BGB). All other regulations of adoption law are subordinate to this goal.

Legal consequences

The adopted child is integrated into the new family like a natural, legitimate child through the so-called full adoption. All relationships with the family of origin are irrevocably terminated. The adoption takes place through a decision of the family court, which has to examine together with the youth welfare office whether it is in the interest of the child. In order to rule out wrong decisions as far as possible, the court adoption decision should be preceded by an appropriate period of care, which usually lasts at least one year (§1744 BGB).

With a few exceptions, spouses can only adopt together. Adoption by a single person is also possible due to the legal requirements. In the practice of adoption mediation in Germany, however, it is rather the exception, which is still evident from the prevailing image of the family in our society, which also includes many family judges, specialists in youth welfare offices and transferring parents, who in principle have a right of codecision in the selection of adoptive parents append. In addition, the better legal and material security of the adoptive child for the preferential treatment of married couples is cited.

requirements

The lower age limit for adoptive parents has been reduced to 25 and 21 years for married couples and 25 years for singles in order to ensure that infants and toddlers are placed with the youngest possible parents (§1743 BGB). In contrast to many foreign legal systems, German adoption law does not have an upper age limit. However, socio-educational practice concludes from the legislator's requirement for a natural parent-child relationship that infants and toddlers should not be placed with adoptive parents who are significantly older than 35 to 40 years. This does not exclude older couples from the possibility of adoption, but it does mean that the placement agencies only suggest older school-age children or young people to such applicants for admission.

Regardless of whether a child to be adopted was born within or outside of an existing marriage, since a decision by the Federal Constitutional Court in 1995, both birth parents must always consent to the adoption, even if they do not have custody (Section 1747 BGB). The child must also give their consent when they are 14 years old. His consent must also be confirmed by his legal representative (§1746 BGB). If both parents have given their declarations of consent, the youth welfare office will act as the legal guardian of the child during the adoptive care period, i.e. until the judicial decision on adoption becomes final. With the consent, the biological parents lose the right to personal contact with the child; their custody is suspended. When the child is accepted into the household of the future adoptive parents, the maintenance obligation of the biological parents is also suspended. It already passes to the adoptive foster parents during the adoption foster care period (Section 1751 BGB). Unlike normal foster parents, they are not entitled to state care allowance. In this respect, too, they should get used to their future role.

If the biological parents of a child cannot be found despite a search by the authorities or if they are unable to give a declaration of consent due to severe, especially mental illnesses, their consent can be waived entirely. There is then no need to replace the consent with a court order. In order to protect mothers of newly born children in particular, a blocking period of eight weeks after the child's birth is mandatory for submitting the declaration of consent (Section 1747 BGB). They should be prevented from making hasty decisions. Only if the parents are not married to each other and the father does not have custody can he give his declaration of consent before the child is born. The consents must be notarized. You are irrevocable. They only become invalid if the adoption application is withdrawn, legally rejected or the child has not been adopted within three years (Section 1750 BGB).

Substitution of consent

Under certain conditions, the consent of the parents or one of the parents can be replaced by a decision of the Guardianship Court if the child would be significantly disadvantaged by not adopting it. Reasons for the judicial replacement of the consent are, for example, that biological parents have behaved indifferently towards their child, that they violated their parental duties over a longer period of time or in a particularly serious way, for example in the form of physical abuse or sexual abuse or insufficient supply (§1748 BGB). The consent of the father of a child who was born outside of an existing marriage and who at no time was the holder of custody can be replaced if the child suffers significant disadvantages without an adoption, without the other conditions specified in the law being required .

This regulation, which has existed since 1998, is intended to compensate in a way for the newly introduced right of consent of formerly so-called illegitimate fathers. Before starting a replacement procedure, the youth welfare office should show the biological parents ways and means that will enable them to keep their child with them and to take care of it better in the future. The proportion of adoptions that come about through a replacement procedure has been between 5 and 10% in recent years.

Continue

The principle of full adoption is also taken into account by those regulations which - with the exception of statutory pension rights - allow all material claims of the child, for example to maintenance or inheritance, from the time before the adoption to be extinguished and give them the opportunity to give the child a new or additional first name by filing an application to the family court (§1757 BGB). The practice of the guardianship courts tends to only allow the addition of a further first name (also as a first name), but not a completely new name. In the interests of the child's identity formation and finding, this is a welcome development, although some adoptive parents have little understanding for it.

A special data protection regulation is intended to protect adoption secrecy and protect the adoptive family from being investigated by third parties. Deviations from this may only be made with the consent of the adoptive parents and the child and in a few strictly limited exceptional cases (Section 1758 of the German Civil Code). This regulation is often misunderstood to the effect that adoptive parents are allowed to conceal the adoption of their adopted child or to prevent attempts - which often begin during puberty - to find out something about their own origin or to make contact with biological relatives. But this is not the case. The Federal Constitutional Court has ruled several times in recent years that everyone - including minors - has the right to know their own parentage.

Annulment of the adoption

Cancellation of an adoption is next to impossible. If the biological parents did not give their consent or if it was obtained through error, deception or threat, the adoption can be revoked by a court order, but only if this does not conflict with the best interests of the child (Sections 1760 to 1762 BGB). In addition, the adoption must not be more than three years ago. Cancellation proceedings that become necessary in the interests of the child due to permanently broken relationships in the adoptive family are more common. In addition, however, the cancellation should enable a new adoption or the child can return to his or her family of origin. Compared to the total number of adoptions, which has been around 6,000 per year in recent years, the annual rate of abandoned adoptions is low at less than 1%.

abuse

Scandalous cases of trafficking in adopted children from South America, Asia and the formerly communist-ruled states of Eastern and Southeastern Europe are repeatedly discussed in public and in the media. In this special branch of international human trafficking, "prices" of up to 100,000 euros and more are now being demanded and paid. Criminal offenses such as child abduction, bribery and forgery of documents play a serious role. The German legislator reacted to this with amendments to the Criminal Code and the Adoption Placement Act, and some time ago also with an addition to the civil law adoption provisions. Anyone who has participated in an illegal or immoral mediation or who has commissioned or rewarded another person may not adopt the child and must regularly expect the child to be removed from the family, unless there are important reasons in the best interests of the child speak exceptionally in favor of his whereabouts. In addition, the Federal Republic of Germany ratified the Hague Convention on the Protection of Children and Cooperation in the Field of International Adoption from 1993 and put it into force at the beginning of 2002. At the same time, a whole series of implementing and amending regulations have been passed, all of which also aim to put a stop to the blatant abuses in international adoption.

literature

  • Harald Paulitz (Ed.): Adoption - Positions, Impulse, Perspektiven, Munich, Verlag C.H. Beck, 2nd ed. 2006
  • Thomas Steiger: The new law of international adoption and adoption mediation, Bonn, Bundesanzeiger Verlag, 2002
  • Irmela Wiemann: Giving adopted and foster children a home, Bonn, Balance, 2nd ed., 2010

Further contributions by the author can be found here in our family handbook

author

Rolf P. Bach, lawyer and social worker, former head of the joint central adoption office of the four northern German states in Hamburg

Contact

Ottersbekallee 15
20255 Hamburg
 

Created on June 7th, 2001, last changed on June 11th, 2013