In today’s article, we will look at what forms of foster care are available, what conditions you need to meet to become a foster or adoptive parent, and which children can be adopted.
In today’s article, we will look at what forms of foster care are available, what conditions you need to meet to become a foster or adoptive parent, and which children can be adopted.
When a child cannot be cared for by his or her biological parents for any reason (whether short-term or permanent), the child may be placed in an institutional facility such as a children’s home, a kangaroo club, a diagnostic or educational institute (in the case of serious educational problems) or in some form of foster family care. The second option is, of course, much better and should always be preferred from the point of view of the State, as it usually provides children not only with a material but also with an emotional background.
Surrogate family care was previously regulated in the Family Act. Since 2014, this law has been repealed and everything is thus enshrined in the new Civil Code. There are usually four main forms of surrogate family care, namely adoption, fostering, guardianship and guardianship. Each form has its own specificities and is suited to a different case where the child needs to be cared for. Each also has different legal consequences.
If the child’s biological parents are not alive or their ties to the child are so severely damaged for various reasons, the most serious intervention may be the adoption of the child by another person. Anyone who is of legal age (at least 18 years old), self-governing and has the qualities and way of life to guarantee that he or she will be a good parent can adopt a child (prospective adoptive parents must undergo psychological examinations, a residential investigation and preparatory courses). Only an individual can adopt a child ; only married couples can adopt together. Registered partners cannot adopt together, only as individuals. There must be a reasonable age difference between the adopter and the child, at least 16 years. Certain close relatives, such as a sibling or grandparent, cannot adopt either.
Only a child who is so-called legally free can be adopted. The biological parents must therefore either agree to the adoption or there must be some serious situation where consent is not required (e.g. the parents are dead, missing or have been deprived of parental responsibility and the right to consent to the adoption, for example because they have abused the child). The consent of the biological parents is also not required if they have not shown a genuine interest in the child for a long time.
Sometimes there is also a situation where the child lives with the biological parent and the adoption is by the partner of that parent. This can happen, for example, if the other biological parent is no longer alive.
Another condition for adoption is, of course, the consent of the child. The court decides on the adoption and should always seek the child’s opinion. If the child is at least 12 years old, his or her consent is required. If a young child is adopted who does not yet perceive the situation and will not remember it, he or she should learn about his or her adoption no later than when school starts.
The law provides various time limits for birth parents to change their minds. For example, the mother can only give her consent to the adoption after six weeks from the birth of the child and both parents can withdraw their consent within three months of giving it. The adoptive parents can take the child in before these time limits expire, but they must take into account that the adoption is not yet final. Even then, the court usually decides on so-called pre-adoption care, i.e. a certain trial period. The adoptive parents can then cancel the adoption for three more years. After that, the adoption cannot be revoked (except in contravention of the law).
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Tip: Are you and your partner considering adopting a child from an orphanage? Or is your partner looking to adopt a child from a previous marriage? We have summarised the legal implications of such a move and how to go about it in our next article.
Another form of foster care is fostering. Foster care is, at first sight, similar to adoption, but the child does not lose ties to the original biological family. The foster parent cares for the child and raises him or her, but is not obliged to support the child. The child’s parents still have a duty to support the child and should pay for it. The foster parent, on the other hand, receives benefits from the state, which serve to provide for the child as well as to reward the foster parent. Foster care may last only a few months or many years, depending on how long the parents are unable to care for the child. The foster carer should ensure that the child has the opportunity to meet and maintain a relationship with the parents. The foster carer also represents the child in routine matters, but it is the parent or the court that has to decide on major issues.
Often foster care is provided by relatives (grandparents) of the child. In this case, adoption is neither appropriate nor legally possible.
The court appoints a guardian for the child when the child’s parents have died or lost parental responsibility. When the situation is acute, the court appoints a so-called public guardian in the form of an OSPOD (child welfare authority) until a suitable natural person can be found. The guardian then has similar rights to the child as a parent (he or she is the child’s legal representative), but does not have a maintenance obligation. If the guardian takes care of the child personally, he or she is also entitled to foster care benefits. The guardian is supervised by the court, reports to the court, and has more serious matters approved by the court.
A guardian is appointed by the court when a child is at risk of a conflict of interest. Typically, if a divorce is being decided as to which parent will be given custody of the child, the child has a guardian in the form of the OSPOD for the duration of the court proceedings. This is to protect the child’s interests impartially. Another option is to appoint a guardian to manage the child’s assets. As a rule, the guardian does not care for the child in any way and may be appointed by a person whom the child has not yet known.
If the child is placed in the care of a court-ordered guardian (in the care of another person, foster care, personal guardianship, adoption), he or she is entitled to entitlements under the sickness insurance regulations (maternity allowance, nursing allowance) and the labour law regulations (maternity and parental leave) in a similar way to the care of his or her own child.
Tip: Considering foster care? What does it mean on a personal, legal and financial level? What are the types of foster care and how do you go about it if you want to become a foster parent? We’ve summarized all the facts and potential legal complications associated with fostering in a separate article.
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