Adoption, adopting a child as his own …

Your dream to have children has not come true yet, so you have decided to adopt… An adoption requires a lot of patience and lots of paperwork must be completed. Moreover, lots of hurdles need to be overcome.

In the following we would like to provide you some information regarding an adoption within Germany.

General Adoption Requirements in Germany

  1. Application
  • The adoption requires an effective petition, 1752 I German Civil Code.
  • The application can only be presented by the adopter personally, 1752 II 1.
  • After the death of the adopter, as an exception, a submission by the commissioned notary is taken into consideration, 1753 II German Civil Code.
  • The applicant must have legal capacity and may revoke the request.
  • The petition “requires notarial authentication”, § 1752 II 2 German Civil Code
  • Conditions or time requirements can lead to invalidity of the request, § 1752 II 1 German Civil Code.
  1. Relevance of Adoption in regards to the “Best Interest of the child”:
  • In regards to the child’s best interest: “The adoption… is permissible if it serves in the best interest of the child…” § 1741 I German Civil Code. Consequently, it must be expected that the adoption leads to a “sustained improvement in personal circumstances or the legal status of the child”, § 1741 German Civil Code. Therefore, a police certificate of the adopter will be required..
  • In regards to family prognosis: “The adoption is … admissible if… it is expected that between the adopter and the child, a parent-child relationship is created,” § 1741 I German Civil Code. This is an independent test requirement. The Court must be convinced of the expectation that the adoption is in the best interest of the child. herefore, in general, Grandparents are excluded from an adoption..
  • Trial Period: “As a general rule, the adoption should only be official if the adopter had a reasonable time to care for the child.”, § 1744 German Civil Code. The trial period is required to make the correct prognosis. What time is “reasonable”, depends on each individual case.
  • Potential conflicts of interest: “The adoption must be not been pronounced, if there are prevailing interests of the children of the adopter 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.
  1. Name Clarification
  • Normally questions pertaining to names are not considered before the adoption, but instead arise as a consequence of the adoption.
  • 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

Special requirements relating to the person of the adopter

  1. Age: A maximum age to adopt does not exist, but there is a minimum age that cannot be overlooked. Old age or a great age difference can affect the interests of the child (see above).
  • “The adopter must have reached the age of 25”, § 1743 S.1 1.Alt. German Civil Code. In the case of adopting the child of the spouse, adopter must be at least 21 years § 1741 II 3, § 1743 S.1 2.Alt. German Civil Code. In regards to a joint adoption in the cases of § 1741 II 2 a spouse must be at least 25 years of age, and the other spouse must be at least 21 years of age, § 1743 S.2 German Civil Code.
  1. Health: One must be examined due to this being a factor for the best interests of children. Therefore, a health certificate is required. Adoption also depends on the marital status.
  • In the case of being single: He “can adopt a child alone” § 1741 II 1 German Civil Code. This also applies to widows or divorcees.
  • In the case of being married only a joint adoption and acceptance by both spouses is permitted, § 1741 II is 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: (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.
  1. International adoption cases: In the case of a partnership: a joint adoption or (with the consent of the other) a single adoption of a foreign child is permitted, § 9 VI LPartG.
  2. Applicability of the AdVermiG: In addition, the child of the partner can be adopted, 9 VII LPartG. Depending upon previous legal situation: “Who was involved in an illegal or unethical mediation or transfer of a child for purposes of adoption or hereby engages a third party, or rewarded for this, should only adopt a child if this is necessary for the child’s best interest“ § 1741 I 2 German Civil Code. This means that even if you are involved in the child’s life, your involvement is not enough because the adoption must be seen as “necessary”, which requires a special bond. Violations of the AdVermiG are particularly relevant.
  3. What about in the case of homosexuality? An adoption may not be refused because the adopter is in a same-sex relationship. According to previous laws, “An adopted child can, as long as the adoption is held, be accepted by the spouses during the lifetime of an adopter,” § 1742 German Civil Code. The provision prohibits a “chain adoption” or “adoption successively.” In addition, only the spouse of the adoptive parent will be taken into consideration. A corresponding application in regards to a life partner is not possible (arg. § 9 VII 2 LPartG). An adoption by a third party is not permitted.

The Duty of the Adoption Agency

The job of the professional advisers who work for the adoption agency is to verify whether the adoption is in the best interests of the child. For instance, they determine if the adoption is permanently and positively supported and if it promotes the development of the child. This requires a high degree of responsibility, sensitivity and empathy of the professionals.