Concept and Definition of the Supplemental Guardianship
Die Supplemental Guardianship is a special form of guardianship in German family law. It is regulated in the German Civil Code (BGB) and additionally in the Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (FamFG). Supplemental guardianship is ordered by the family court when the parents, who have parental custody according to § 1626 et seq. BGB, are prevented from exercising their custody in certain matters or when there is a conflict of interest between parents and child. Supplemental guardianship thus ensures that the interests of the minor child are represented in individual matters by an independent guardian.
Legal Basis of Supplemental Guardianship
German Civil Code (BGB)
The relevant provisions on supplemental guardianship can be found in §§ 1909 to 1915 BGB. Especially relevant is § 1909 BGB, which explicitly provides for the appointment of a supplemental guardian when parents or a guardian are prevented from handling individual matters.
FamFG and Further Regulations
The FamFG contains procedural regulations for the appointment of a supplemental guardian as well as for the implementation of the judicial appointment and supervision of the guardian. Relevant regulations are §§ 150 et seq. FamFG.
Requirements and Areas of Application of Supplemental Guardianship
Grounds for Exclusion of Parental Custody
A supplemental guardianship is particularly ordered when parents are legally or by court decision prevented from exercising parental custody in specific matters. This is, for example, the case when:
- the parents are incapable of acting in a specific area (e.g. due to health reasons),
- there is a concrete conflict of interest between the parents and the child (e.g. when concluding or contesting a contract between child and parents),
- the law excludes parental custody in certain matters.
Typical Practice Cases for Supplemental Guardianship
Frequent applications include:
- Representation in Legal Transactions: In cases where a parent wants to conclude a legal transaction with the child, the appointment of a supplemental guardian is required under § 1795 (2), § 1629 (2) sentence 1 BGB to protect the interests of the child.
- Financial Matters: When parents dispose of the child’s assets, e.g. in real estate transactions, supplemental guardianship is necessary to ensure objectivity.
- Court Proceedings: If a parent litigates in the name of the child against themselves or in their own name against the child, the court regularly appoints a supplemental guardian (§ 1629 (2) sentence 3 BGB).
- Child Welfare Endangerment: In situations where measures to protect the child’s welfare become necessary and the parents’ suitability for the exercise of custody is doubtful, supplemental guardianship can be assigned to a person for certain areas.
Appointment of the Supplemental Guardian
Jurisdiction and Procedure
The locally competent family court is responsible for the appointment of a supplemental guardian. The suggestion can be made ex officio, by the youth welfare office, or upon application by the parties involved. The court examines the necessity and scope of the guardianship and appoints suitable individuals or the youth welfare office to exercise the supplemental guardianship.
Selection and Scope of Duties
The appointed supplemental guardian has comprehensive authority of action within their designated scope. This scope is limited to the matters in which the parents are prevented from exercising custody. Typical tasks include representation in specific legal acts, consent to contracts, or legal representation of the child in court.
Legal Status of the Supplemental Guardian
The supplemental guardian exercises parental custody in the assigned matters instead of the parents or guardian. They are accountable to the family court and are subject to its supervision and instructions. The supplemental guardian must safeguard the child’s interests independently and diligently.
Termination and Supervision of Supplemental Guardianship
Reasons for Termination
Supplemental guardianship ends as soon as the reason for its appointment ceases to exist – this may be due to completion of the specific matter, the child reaching majority, or the child’s death. Judicial cancellation of the office is possible if the legal requirements are no longer met or if the guardian is unsuitable.
Supervision and Monitoring
The family court supervises the activity of the supplemental guardian in accordance with §§ 1837, 1839 BGB. In particular, financial matters are subject to special supervision so that damage to the minor’s assets is prevented.
Distinction from Guardianship and Other Types of Guardianship
Supplemental guardianship differs significantly from guardianship in that it only covers specific areas of custody, while parental custody otherwise remains unaffected. Other forms include Full Guardianship (when parents are completely prevented from exercising parental custody) and Co-Guardianship (several guardians for different matters).
Significance and Practical Relevance
Supplemental guardianship is an important protective measure for minor children and ensures that conflicts of interest or hindrances on the part of the parents do not adversely affect the child’s welfare. In practice, it serves to balance interests fairly in transactions and proceedings that require particular neutrality and objectivity.
Literature and Further Sources
- German Civil Code (BGB), in particular §§ 1626 et seq., 1795, 1909-1915
- Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (FamFG)
- Information and guides from state youth welfare offices on guardianship and supplemental guardianship
Note: The content presented serves to provide objective information about supplemental guardianship under German law and does not replace individual legal advice.
Frequently Asked Questions
In which situations is supplemental guardianship ordered?
Supplemental guardianship is usually ordered by the family court when the parental custody of the parents of a minor is partially restricted by a concrete conflict of interest, actual or legal obstacles, or when a representative is needed for certain legal actions because the parents are not legally authorized to do so. This can be the case, for example, when the parents are involved in a legal transaction with the child (e.g. in the transfer of real estate), which would result in a so-called self-dealing and thus requires a neutral representative for the child. Supplemental guardianship may also be necessary if there are financial matters or legal disputes concerning a minor to be settled where the parents themselves are affected or conflicted. The family court examines in each individual case whether the requirements pursuant to § 1909 BGB are met and ensures appropriate appointment in line with the child’s welfare.
Who can be appointed as a supplemental guardian?
In principle, any adult with legal capacity and suitability may be appointed by the family court as supplemental guardian. Often, these are professionals such as lawyers, custodians, or other persons active in youth welfare, less commonly, relatives, provided there is no conflict of interest with the minor. Suitability is assessed by the court regarding personal reliability, experience, and independence. If there is no suitable person in the child’s environment, the youth welfare office as provisional guardian or a recognized guardianship association may be appointed. The appointment is always for the specifically defined scope (e.g. for certain financial matters), so that the supplemental guardian does not have comprehensive representation power, but is only active within the defined areas of responsibility.
What specific tasks does the supplemental guardian assume?
The tasks of a supplemental guardian are determined by the court order appointing them and are always limited to a specific scope of activity (area of custody). Typical tasks include representing the minor in certain legal transactions (e.g. inheritance matters, transfer of real estate, acceptance or renunciation of inheritances, legal disputes), administration and safeguarding of assets, or participation in decisions about residence or medical measures where there is a parental conflict of interest. The supplemental guardian is obliged to report to the family court and be accountable, and must always be guided by the welfare of the child in their work.
How long does supplemental guardianship last and how is it terminated?
Supplemental guardianship generally only lasts as long as the reason for the appointment persists. It is limited to the completion of the specific scope of duties and ends automatically as soon as the corresponding reason ceases to exist, the child comes of age, or the parental conflict is resolved. The family court can terminate the supplemental guardianship by order if it is no longer necessary. Additionally, there is always the possibility for judicial dismissal of the supplemental guardian for important reasons, such as lack of suitability or serious breach of duty. There is no automatic conversion into comprehensive guardianship or custody.
What rights and obligations do parents have during supplemental guardianship?
Parents do not generally lose parental custody as a result of supplemental guardianship, but only within the scope determined by the family court. Outside this scope, their parental rights remain fully intact. In the affected area, rights and duties are transferred to the supplemental guardian; parents are no longer authorized to represent the child in those matters and must not make independent decisions regarding them. However, they are obliged to cooperate with the supplemental guardian and provide all information and documents relevant for the exercise of guardianship.
How is the activity of the supplemental guardian supervised and financed?
The activity of the supplemental guardian is subject to the supervision of the family court. The guardian is required to regularly provide the court with an account of their actions. Especially in the administration of assets or major decisions (e.g. sale of real estate), court approval is often required. The remuneration for the supplemental guardian is governed by the provisions of § 1836 BGB and is paid either from the child’s assets or, if this is insufficient, as remuneration or expense allowance from public funds (the state treasury). If a professional guardian or association is appointed, a lump-sum remuneration may apply.
To what extent can supplemental guardianship be influenced by application?
A supplemental guardianship may be ordered not only ex officio by the court, but also upon application by the parents, the youth welfare office, or, in special cases, also by the child themselves (if competent). It is also possible to apply for an extension or restriction of the scope of duties, or for the dismissal or replacement of the supplemental guardian if new circumstances arise. The court examines every change in detail and always refers to the child’s welfare and the necessity of the supplemental guardianship. Complaints against actions of the supplemental guardian may also be brought before the family court, which then decides whether intervention is required.
