Definition of terms: Auslandskind (Child abroad)
The term Auslandskind refers in legal terms to a minor child who, under certain conditions, was born abroad or lives abroad, and whose legal status is determined, for example, with regard to nationality, descent, maintenance, or custody. The definition of Auslandskind encompasses various circumstances in German and international law, particularly relevant in the context of international family law, nationality law, and residency law.
Nationality and Auslandskind
The legal classification of a child who is born abroad or whose parents live abroad poses special requirements for nationality law.
Acquisition of German nationality by birth abroad (ius sanguinis and ius soli)
The acquisition of German nationality by a child born abroad is primarily determined by the principle of descent (ius sanguinis) according to § 4 para. 1 sentence 1 of the Nationality Act (StAG). A child acquires German nationality by birth if at least one parent holds German nationality at the time of birth. The place of birth principle (ius soli) is generally irrelevant abroad, but may be relevant domestically (§ 4 para. 3 StAG).
Special regulation: Loss of nationality pursuant to § 4 para. 4 StAG
According to § 4 para. 4 StAG, a child born abroad to a German parent loses German nationality if the parents have been living abroad since after 31 December 1999, the child was born there, and the parent was also born abroad after 31 December 1999 and has their habitual residence there, unless, the child would otherwise be stateless or a valid notification is made for the child to the competent German mission abroad within one year of birth.
Descent and parentage law for Auslandskinder
Establishing the descent (paternity and maternity) of an Auslandskind is a central aspect of international parentage law.
Establishing paternity
According to Art. 19 para. 1 EGBGB (Introductory Act to the Civil Code), the legal assignment of the child to the parents (descent) is determined by the law of the state to which the child belongs. Recognition and challenge of paternity in the case of children born abroad are governed either by the law of the country of birth, the country of residence, or the parents’ country of origin.
Maternity and surrogacy
The maternity of a child born abroad is clearly regulated in Germany (§ 1591 BGB): the mother is fundamentally the woman who gave birth to the child. Problems arise particularly in relation to surrogacy arrangements entered into abroad, which in Germany may raise questions under family and international law.
International custody and access rights for Auslandskinder
Questions of custody and access for Auslandskinder are often regulated by international conventions and national provisions.
Applicable law
According to Art. 21 EGBGB, the law governing custody of a child is generally that of the state in which the child has their habitual residence. An exception applies if the child is a German national and the parents choose the application of German law.
Hague Child Protection Convention
The Hague Child Protection Convention (CPC, 1996) regulates jurisdiction and applicable law in international custody matters. Its aim is the protection of children whose living situations cross national borders.
International adoption and Auslandskind
International adoptions are one of the most frequent contexts in which the term Auslandskind appears in legal practice.
Recognition and effectiveness of international adoptions
The recognition of foreign adoption decisions in Germany is governed by §§ 108, 109 FamFG as well as the Hague Convention on Protection of Children and Cooperation in Respect of Intercountry Adoption (HCCH 1993 Adoption Convention). The child’s welfare is decisive, as well as the avoidance of parentage conflicts.
Legal status of residence for Auslandskinder
Questions regarding residence permits and the right to enter the country affect Auslandskinder to a significant extent as well.
Entry and residence
According to the German Residence Act (AufenthG), minor children born abroad of German or foreign origin may obtain a right of residence through family reunification (§ 32 AufenthG). If the child is German, entry and residence in Germany are possible under Art. 116 GG.
Aspects of child maintenance law for Auslandskinder
Child maintenance for children living or born abroad is generally determined by international conventions, particularly the 2007 Hague Maintenance Convention and the Maintenance Proceedings Act.
Social law and child-related benefits for Auslandskinder
Under certain conditions, Auslandskinder may be eligible for child-related social benefits such as German child benefit (§ 62 et seq. EStG) or parental benefit (§ 1 BEEG). Usually, claimants are German nationals or parents working in Germany subject to social security contributions, regardless of the child’s habitual residence, provided this is permitted by EU law or bilateral agreements.
Protective measures and children’s rights for Auslandskinder
The focus is on international child protection measures and implementation of the UN Convention on the Rights of the Child, which in most cases also protects Auslandskinder. Measures apply particularly in cases of human trafficking, child abduction, or suspicion of abuse.
Special cases: Child abduction and repatriation of Auslandskinder
A key area of concern is cross-border child abduction, particularly between countries with different legal systems. Repatriation is essentially governed by the Hague Convention on the Civil Aspects of International Child Abduction of 1980, which provides for rapid proceedings and restoration of the status quo prior to the abduction.
References and further legal foundations
- Nationality Act (StAG)
- Introductory Act to the Civil Code (EGBGB)
- Civil Code (BGB)
- Residence Act (AufenthG)
- FamFG – Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction
- Hague Conventions in the field of child protection, child abduction, maintenance, and adoption
Summary
The term Auslandskind encompasses numerous legal aspects of international family law, nationality law, residence law, and social law. In most cases, these are children whose life circumstances are shaped by being born abroad, binational parentage, intercultural adoptions, or international custody conflicts. Legal rules and international agreements ensure that the protection, affiliation, and rights of Auslandskinder are preserved both at the national and international levels.
Frequently Asked Questions
Does German nationality law automatically apply to Auslandskinder?
For so-called Auslandskinder – that is, children of German nationals who are born abroad – German nationality law generally only applies automatically if at least one parent possesses German nationality at the time of birth. However, since the Nationality Law Reform Act (StAG) came into force on 1 January 2000, there is a special regulation under § 4 para. 4 StAG: children who are born abroad and whose German parent was themselves born abroad and after 31 December 1999 acquire German nationality only if the birth is reported to the relevant German registry office within one year. If this deadline is missed, the child loses the right to acquire German nationality by birth. This is intended to prevent the permanent transfer of German nationality abroad over generations without a domestic connection.
What rights and obligations do Auslandskinder have regarding the registration requirement in Germany?
According to German registration law, there is no general registration obligation in Germany for children born abroad as long as they do not establish a residence or habitual abode in Germany. Nor is there an obligation to obtain a German birth certificate or to register in the birth register without a specific connection to Germany. However, it may be advisable to have the birth subsequently registered at the relevant German registry office to safeguard nationality claims or to obtain German travel documents. This is a purely optional right and not an obligation.
What evidence must be provided to apply for a German passport for an Auslandskind?
To issue a German passport for children born abroad, it is necessary to prove beyond doubt the child’s descent from a German parent. This is usually done with official documents, generally by submitting the birth certificate (with a certified translation) and proof of the relevant parent’s German nationality (e.g., German passport or certificate of nationality). In special cases, a birth notification pursuant to § 4 para. 4 sentence 2 StAG may also be required. If there are doubts about the child’s identity, descent, or the legality of the circumstances, passport authorities reserve the right to request further proof or documents.
Are Auslandskinder entitled to child benefit from Germany?
Under current German law, entitlement to child benefit under the Federal Child Benefit Act (BKGG) or the Income Tax Act (EStG) is generally linked to the residence or habitual abode of the child or the entitled parent in Germany. Auslandskinder with exclusive foreign residence generally do not receive German child benefit, unless the parents are still fully liable for income tax in Germany (e.g., cross-border commuters or temporary secondment abroad). Exceptions are handled restrictively and require detailed legal reviews.
Are Auslandskinder subject to compulsory military or alternative service in Germany?
Since conscription was suspended in Germany in 2011, neither children living in Germany nor Auslandskinder are in principle obliged to do military or alternative service. However, if the Conscription Act (§ 1 WPflG) is reactivated, the issue may need to be reconsidered: In fact, children raised abroad but holding German nationality can generally still be liable for conscription if they move their residence to Germany or cannot prove permanent residence abroad. In such a case, a returning resident from abroad would need to check whether a registration or conscription obligation applies to their individual situation.
Can Auslandskinder make inheritance claims in Germany?
In principle, Auslandskinder are entitled to inheritance under German law if they are recognized as legitimate or statutory descendants. The applicable law is German inheritance law as long as the deceased’s last habitual residence was in Germany or German law applies on the basis of the European Succession Regulation (EuErbVO). However, locating and securing claims may be more difficult, especially if the heir resides exclusively abroad. Asserting inheritance rights generally requires official certification of nationality and family relationship.
What educational and academic rights do Auslandskinder have on returning to Germany?
Children of German nationals who were born and raised abroad generally have access to all public educational institutions and universities when returning to Germany, provided they meet the required academic prerequisites. The education received abroad is examined for equivalence; if necessary, adaptation measures (e.g., language courses, repeating a school year) may be needed. Particularly important is the recognition of foreign school diplomas and certificates, which is carried out according to the relevant state regulations. In higher education, the regulations of the Central Office for Foreign Education (ZAB) within the Standing Conference of the Ministers of Education and Cultural Affairs apply, which governs recognition and equivalence of foreign qualifications.
