SOCIAL NETWORK
Impressum I Datenschutzerklärung
© 2023 Sugrobov+
In the practice of family law proceedings, the question of representing the child in maintenance matters is often a central but simultaneously complex point. Especially after the separation of the parents, the question arises as to how the child’s claim for maintenance is correctly asserted and who can represent the child in this procedure.
According to § 1629 Abs. 2 Satz 2 BGB (German Civil Code), in cases of joint parental custody, the child is represented by the parent in whose care it resides. This term is designed to be practical: it is oriented towards which parent is primarily responsible for the actual care and nurturing of the child. This means that the parent who predominantly meets or ensures the basic living needs of the child holds the care. In case the parents live in separate homes and the child’s main residence is with one parent, this parent is assigned the care.
The alternating model – where the child lives with each parent for approximately equal lengths of time – is a special case. In this scenario, no focal point of care can be identified, and therefore, according to § 1629 Abs. 2 Satz 2 BGB, neither parent holds the care. The solution? The parent who wants to assert maintenance claims for the child must either apply for the appointment of a guardian for the child or apply to the family court to transfer the decision to assert child maintenance to him or her alone, according to § 1628 BGB.
Things get interesting when the child’s parents are married to each other: in this case, according to § 1629 Abs. 3 Satz 1 BGB, one parent can only assert claims for child maintenance against the other parent in their own name, as long as the parents are living separately or a matrimonial matter is pending between them. This is intended to ensure identity of the parties involved in the matrimonial matter and the child maintenance procedure until the divorce becomes final and also to minimize conflict situations for the child during the separation period and the divorce proceedings.
After the parents’ divorce becomes final, the minor child may, in principle, enter the maintenance proceedings initiated by his or her legal representative as a procedure representative. Here, the rules of the voluntary change of parties must be observed, and generally, the consent of the opponent is required if oral negotiations have already taken place with the procedure representative.
The procedure representation for a marital child begins with the separation of the parents or the initiation of the matrimonial matter.
It ends, in particular, when:
Another central topic is the question of legal aid. According to the case law of the Federal Court of Justice (BGH), the income and assets of the parent bringing the claim, not those of the child, are decisive.
This overview shows that the representation of the child in maintenance proceedings is a complex area that requires legal finesse. It is therefore advisable to consult a specialist lawyer for family law who is experienced in this specific area of law.
