Why are some parents eligible
Laws, ordinances, edicts and comments
Personal custody, correspondence with legal guardians and lawyers
Order of the Bez.Reg. Hanover v. 2.2.2001 - 409a-83000 (01/01) -
For the schools, formal contact with the legal guardians is always associated with problems. In the following, therefore, some questions of doubt are to be clarified and procedural information given, which I would ask you to observe.
1. Who is my contact person?
The number of children whose families do not consist of married biological parents is increasing. The parents of more and more children are divorced, separated or simply not married.
This raises not only social but also legal problems when it comes to the question of parental authority (cf. Ritters, SVBl. 1999, p. 136ff., Gutschmidt, SVBl. 2000, p. 496ff.).
In all questions affecting parental rights or duties, schools must use the term “legal guardian” in Section 55 NSchG as a guide. In individual cases, the effectiveness of a legal act can depend on it. Section 55 NSchG primarily focuses on the right to custody of persons with regard to legal guardianship.
2. "Common concern" as a rule
On July 1st, 1998 the new child law came into force, one of the main innovations of which is joint custody as a rule for separated or divorced parents.
Married parents have joint custody. The same applies in cases in which the father of a child born out of wedlock has made an official declaration of custody. Even in the event of separation or divorce, the parents will continue to exercise custody as a matter of principle, following the revision of child rights.
The determination of sole custody of one parent requires a corresponding decision by the family court.
3. What is the school's task?
It is not the task of the school to determine the parents' custody rights (see Seyderhelm / Nagel / Brockmann, NSchG, §63 Erl.2.1). Based on the legal assessment, they can and must assume joint custody until the parent or legal guardian who claims to have sole custody submits the relevant judgment of the family court.
One parent can also prove by submitting a power of attorney from the other parent that they have sole power of representation (see 6. below).
However, the school also has the option of obtaining custody in advance using the als Attachment 1 to clarify the attached form.
4. What does "common concern" mean?
In principle, if the parents have joint custody, they have to make all decisions concerning their child together and also to inform the school together. However, a distinction must be made between matters of vital importance and matters of daily life.
In Essential questions the legal guardians always have to decide and act together. Critical issues are those that have an impact on the child's development that is difficult to modify. This includes, for example, the selection of the school, religious education, other school administrative acts, such as the decision not to transfer, regulatory measures, postponing school attendance, determination of special educational needs, etc.
This means that the parents have to take care of the upbringing and thus all legal acts towards the school and the school authorities together. Applications, contradictions and other legally relevant declarations must therefore be submitted by both parents. School letters and decisions must be addressed to both parents and - if the legal guardians do not live together - sent to both legal guardians separately.
Matters of daily life
This also applies to the case in which the child lives with both custodians Matters of daily life, but in the absence of evidence to the contrary, it can be assumed that the parent who is in contact with the school is regularly authorized by the other parent.
Everyday affairs are matters that occur frequently and have no difficult-to-modify impact on the child's development, such as apologizing in the event of illness or the ordering of a means of parenting.
This is different if the child only lives with one of the two custodians. In this case, the custody of the parent with whom the child is not habitually resident is limited in accordance with Section 1687 of the German Civil Code (BGB). The decision in matters of daily life then rests solely with the parent with whom the child usually resides.
5. Parental custody of only one legal guardian
If only one legal guardian is responsible for parental custody, only their declarations are relevant for the school. In the case of divorced or separated parents, sole parental custody must be proven by the family court decision. In the case of mothers of illegitimate children, this evidence can be provided by a so-called negative certificate from the youth welfare office in accordance with Section 58a of the Book of Social Code VIII, in which the youth welfare office confirms that no joint custody declaration has been made.
Even with sole parental custody, the other parent can have individual rights transferred by the family court, such as a right of contact with the child. In this case, the rights must be proven by the other parent by submitting the legal judgment.
However, it is not the task of the schools, as is sometimes required by legal guardians, to prevent contact between the non-custodial parent and the child. This only comes into question if the non-custodial parent disrupts the school peace and school rules. In this case, this person may be expelled from the school premises.
If the parent with sole custody wants to prevent contact between the other parent and the child at school, this must be done solely through the family court. Even if there is a corresponding judgment, the schools do not have the task of ensuring that it is implemented.
6. Authorization of the other legal guardian
If both parents have custody, there is the possibility, in order to simplify the relationship between the school and the legal guardian, that the parent, who usually looks after the child's interests vis-à-vis the school, has the other parent vis-à-vis the school in order to protect the interests of the child is empowered. In this case, the school would not be required to communicate with both parents on issues of importance.
Such a power of attorney is particularly useful if the parents have joint custody, but are separated or divorced and one of the parents is primarily responsible for the child's schooling. However, there is no obligation to authorize in any case. A draft form for such an authorization is attached (Annex 2).
7. Representation of the legal guardian (s) by a lawyer
In principle, legal guardians have the option of appointing a lawyer to represent them in all school matters. In order to avoid ambiguity, the lawyer should be required to prove his power of attorney immediately by submitting a power of attorney. This must be signed by all legal guardians in accordance with the principles set out above.
If the lawyer has properly proven his authorization, all correspondence must be conducted with him. For the disclosure of administrative acts, it is now a matter of his person and no longer of the legal guardians.
The lawyer remains the school's contact person within the scope of his power of attorney until his power of attorney is revoked.
8. The special cases of § 55 sentence 2 NSchG
For the special cases of § 55 sentence 2 NSchG, I expressly point out that persons who are not entitled to custody are only considered to be legal guardians within the meaning of § 55 NSchG if the legal guardians (in the case of joint custody both Custodians) have communicated the relevant facts to the school and determined that the other person should be considered to be the legal guardian.
For pupils who live in foster families or homes, please clarify the question of custody and representation rights in individual cases, if necessary by asking the youth welfare office.
9. Your contact person
If you have any further questions, the school law team of the Hanover District Government will be happy to help.
[Note d. Red .: Addresses not listed here
The district government is now the state school authority, Dept. Hanover (0511-106-0)]
For separated / divorced parents:
The pupil lives with
I hereby authorize Ms / Mr ____________________________
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