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A. The principles of an adoption in Germany
1. The adoption of a child is pronounced at the request of acceptor of the family court, § 1752 I BGB.
2. A legal "adoption decree" is required. In international adoption cases, an additional tenor may be necessary.
3. The local district courts have jurisdictions.
4. Special rules apply in death cases:
(a) Death of the child: The Decree may not be or is ineffective, when
the child dies before the delivery of the adoption decree to the
acceptor, § 1753 I BGB.
(b) Death of Acceptor: A previously effective declaration by acceptance
will not be cancelled and can still be – positively granted even though
the acceptor dies The reason for that are the succession consequences,
§ 1753 II BGB. With the death of the acceptor, the prohibition of a
chain adoption pursuant to §1742 BGB does no longer apply.
5. Effects of an adoption with respect to its international
applicability: The adoption law is regulated differently in each country
of the world. This concerns not only the requirements under which a
child can be adopted or how the procedures of an adoption are in each
country. Also the effects of an adoption can be very different. It does
not matter whether a country is a party of the Hague Adoption Convention
or not, because the Convention makes no requirements in this respect,
but is without prejudice to the substantive law of an adoption of a
country. In relation to the effects of an adoption, one differs between a
strong and a weak adoption. When a weak or even incomplete adoption
occurs, the consequence is that the remaining legal relationships, such
as inheritance rights or maintenance obligations, to the biological
parents or their relatives are maintained.
Whether there is a strong or a weak adoption has influence on the
acquisition of German citizenship. Usually only an adoption with strong
effects a child of foreign nationality provides the right to obtain
German citizenship, if at least one of the acceptors is a German
national. For the corresponding countries, whose adoption law has a strong or weak action, please contact us.
Requirements on an adoption in detail
A. General requirements
1. Application:
• The adoption will require an effective application, pursuant to section 1752 I German Civil Code.
• The application can only be filed by the acceptor himself, § 1752 II German Civil Code.
• After the death of the acceptor, a submission by the commissioned
notary public on behalf of the acceptor can be filed, § 1753 II German
Civil Code.
• The applicant must be legally capable of filing the petition and may
withdraw the adoption request, § 1752 II 2 German Civil Code.
• The application must be notarized, section 1752 II, 2 German Civil Code.
2. Conditions made will make the adoption application invalid, section 1752 II German Civil Code.
3. Relevance of adoption if the adoption is in the best interests of the child:
• Best interest of the child: "the adoption... is allowed, if it serves
the best interests of the child and... ", section 1741 I 1 German Civil
Code." Consequently, it must be expected that the adoption will lead to a
sustainable improvement of the personal circumstances or the legal
status of the child, section 1741 German Civil Code. Therefore, a police
certificate of the acceptor will be required.
• Family forecast: "the adoption... is allowed, if... it is to expect
is that a parent child relationship will be created between the acceptor
and the child", section 1741 I German Civil Code. This is a requirement
that will be evaluated on its own. The Court must be convinced of the
expectation that the adoption is in the best interest of the child.
Therefore, in general, Grandparents are excluded from an adoption. A
“Trial period is required: "The adoption should be pronounced normally
only, if the acceptor had a reasonable time to care for the child", §
1744 German Civil Code. In general a trial period is required to make
the forecast. What time is 'reasonable', depends on the individual case.
• Potential conflicts of interest: "The adoption must be not been
pronounced, if there are prevailing interests of the children of the
acceptor or if it is likely that the adoption will endanger the interest
of the child to be adopted, § 1745 S. 1 German Civil Code.
• The interests of their own or previously adopted children may exclude
the adoption; other/ foreign will not be taken into account. The
existence of other children is - in general - to be taken as a positive
influence. Proprietary and financial interests may be included into the
evaluation, but shall not be the decisive factor type, § 1745 S. 2 BGB.
That the previous children would no longer receive the minimum
maintenance would be significant. Previous children must always be
heared, BVerfG DRsp 2008 / 21704 NJW = 2009,138 = FamRZ 2009,106.
4. Clarity of the name:
• Usually questions with respect to the name law are not check prior to the adoption, but shall arise as a consequence.
• Special case scenario 1: If a child of spouse together or a child of
the other spouse or partner is to be adopted and no marriage and life
partnership name has been chosen, §§ 1757 II 1 or 9 VII 2 LpartG, then,
when the child is between 0-4 years old: the adoption depends on that
the couple (or life partner, § 9 VII 2 LPartG) make a declaration to the
Court and determine the birth name of the child to be adopted, § 1757
II BGB. When adopting a child from 5 years or older: It is necessary
that the child consented to the chosen name by making a declaration to
the family court 2 1.HS, § 1757 BGB. This statement requires a
notarization and public certification, § 1757 II 2 2.HS in conjunction
with § 1617c I 2 analog BGB. As long as there has been no consensus
between the participants (possibly three), the acceptance decision will
not be made.
• Special case scenario 2: If a married child with a marriage name is to
be adopted, §§ 1757 III BGB, then, if the spouse has not consented to
the name change of the child, before the adoption is effective, the
child retains his name and the adoption does not dependent on the name
change consensus.
B. Specific requirements with regard to the person of Acceptor
1. Age: A maximum age doesn't exist but a minimum (see below), from
which cannot be exempted from. Old age or large age difference can
affect the interests of the child (see above).
• "The acceptor must have completed the 25th year of life, § 1743 S 1 1.Alt. BGB.
• Adoption of a child of the spouse: "The acceptor must... in the cases
of § 1741 II 3, have attain age 21 years, § 1743 S 1 2.Alt. BGB.
• Adoption during marriage: "in the cases of § 1741 II 2 a spouse must
have completed the 25th year of age, the other spouse the 21 years of
age", § 1743 S. 2 BGB.
2. Health: One must be examined due to this being a factor for the
best interests of children. Therefore, a health certificate is required.
Depending on the marital status:
• With unmarried: He "can adopt a child only alone", section 1741 II BGB. This applies also to a divorced person.
• If married: Allowed is only the adoption in the community by both
spouses, section 1741 II 2 German civil code. This applies also to a
long separation, OLG Hamm FamRZ 2000,257. An decision of an adoption is
invalid even with the consent of the spouse, unless one of the following
exceptions is given: Düsseldorf FamRZ 2008,1282. (1) A sole adoption is
possible, if it is a child of the other spouse, (section 1741 II 3
BGB;) (Stiefkind adoption) or if the spouse by incapacity or age in the
adoption is prevented from, section 1741 II 4 German civil code.
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