10 custody order questions you've always wanted to ask

No one likes to imagine who should take care of the minor children in the event of the death of both parents. But the thought also worries many parents. Around 1000 children become orphans in Germany every year. To secure the family for a misfortune is important above all for the children. This is what a custody decree is for. It determines where and with whom children will be placed in the event of the parents' death, and who will assume legal and financial responsibility for the children as guardian.

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1. What is a custody order?

With a custody order, parents tell a judge or magistrate which guardian to choose for their children and where their children should be placed should something happen to the parents.

While the court does not always have to grant the custody order, it will consider it.

Parents dying at the same time or in short intervals is very rare. When it happens, it is usually after an accident. That's when the custody order comes into effect.

In order for parents to have a voice, several formalities must be met. Before parents select a guardian, it is imperative that they have a detailed conversation about their willingness to take on such a responsibility. The willingness of the potential guardian should be reviewed off and on over several years, as life circumstances can change at any time.

It is also possible to enter a substitute guardian in the document in case the guardian becomes ill or is unable to take care of the children for other reasons.

2. Who gets the children?

The family court does not have a standard provision for orphans. Although one would like to assume that automatically the next of kin are obligated, the law does not require this. Therefore, it helps the court if it can take into account the wishes of the parents.

3. What are the duties of a guardian?

A guardian assumes the legal and financial responsibilities for the child or children in the event that both parents suddenly pass away. In addition, a guardian takes over parental care. This means that he or she decides which school a child goes to and where he or she should live. However, the guardian does not necessarily have to take the child into his or her home, but can also appoint a foster family, a children's home or a residential group.

4. How does a judge decide on the guardian?

The decision on who to appoint as guardian is made in the family court. A judge will usually first consider the family and friends. Of course, he or she will consider the will of the parents in the process. Therefore, it is important to explain in the custody order exactly why a person from the family or friends circle is desired as guardian. Also crucial is what relationship a child has with the potential guardian, his or her financial situation, and whether there is a reason to reject candidates based on age. A guardian must be of legal age, not too young, but not too old, because the guardianship is to be carried out until the child reaches the age of majority. Siblings are usually placed with the same guardian.

5. Who must write the custody order?

A custody order is a type of will with the same rules.

At least one parent must have handwritten the declaration. It is sufficient if the spouse signs it. If the parents are unmarried, both must draw up a custody order. To be sure that everything is correct, the custody order can also be drawn up by a notary public. In this case, the signature of the parents is sufficient.

You can keep the will at home or deposit it with a notary or probate court. Probate courts charge a one-off fee of 75 euros for safekeeping.

If the document is kept at home, it is important that others also know where it is kept in case it is not found immediately.

6. What details must be included?

A custody order mandatorily needs the following details:

• Place and date

• First names and names

• Signatures with first and last name

7. What happens if there is no custody order?

If there is no custody order when the parents die, a judge or magistrate will first look for a person in the family circle. If there is a close family with children, a judge may intuitively make the same choice as the deceased parents. If that is not the case, finding a guardian can be difficult.

If no one can be found, a guardianship association or also the youth welfare office usually takes over the guardianship.

8. What are the deviations?

In most custody order cases, the judge or magistrate will grant the parents' will. However, if the desired guardian is not suitable for some reason, such as illness or age, a court may decide against the will of the parents.

9. What happens after the death of parents?

Even if parents have drawn up a custody order, there is no guarantee that it will be carried out. In each case, the family court will consider whether the parents' decision is in the best interests of the child. If the custody order is in the best interests of the child, it will usually be granted - if not, the family court may make a different decision. It is important for parents to also provide reasons why a person is not eligible to be a guardian. Reasons could be that a parent has not cared for the children, has been violent or has had a bad relationship with the child or children.

10. What if the guardian or the children refuse?

A guardian can only refuse guardianship if he has important reasons. These include a difficult family situation, financial hardship or age. Upon reaching the age of 60, he or she may indicate that he or she feels too old.

Objections can also be made by children themselves. From the age of 14, children can reject the guardian appointed by their parents.

What is a power of attorney for custody?

In addition to a custody order, you can issue a power of attorney that gives the guardian capacity to act with authorities and doctors or medical professionals so that he or she can take care of important matters without having to wait for a decision from the family court. A custody power of attorney also has another purpose. Not only in the event of the death of the parents, but also in the event of illness, custody can thus be transferred to another person without losing one's own custody.

Conclusion

It is very rare for both parents to die at the same time, but even for single parents, the question, "What if something happens to me? ", can cause sleepless nights. With a custody order, you can legally protect yourself and especially your own children.

It feels good to know that even after your own death, a trusted person will raise your children safely and lovingly.

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