OLG Brandenburg: withdrawal of the residence determination due to serious communication problems
NJW-RR 2010, 872
withdrawal of the residence determination due to serious communication problems
ZPO § § 621E Code of Civil Procedure, Civil Code § § 1666 BGB
If the parents after the exchange model has failed, contrary to the urgent desire of the eight-year-old child unable to agree on the residence of the child, may cause a withdrawal of the residence determination into account. (Ruling of the editors)
OLG Brandenburg, order of 31 3. 2010-13 UF 41/09
Facts: The parties
the parents of the child born 2002 D. are you fighting since their 2007 separation occurred at the residence determination for their child. After the child's mother had initially left the child with the common marital home, she is after an agreement between the child's parents a
interim procedures in an apartment in E. - the residence of the child's parents - pulled. D visits since September 2008, the elementary school and was first in the so-called exchange model for one week, both the father and the mother cared for and looked after.
During the weeks spent with his father visited D before school and after school to the nursery. After both child's parents had come to the conclusion that the exchange model is not for the good of her son D is beneficial, both parents have requested the cancellation of joint parental authority
extent that they have each applied for a residence determination for her son D by itself.
The AG - FAMG - the stay provision of the child in the child's father D alone has transferred. On the complaint of the child's mother, the OLG's parents residence determination is revoked for D and so far ordered the youth office to nurse.
the reasons:
II, the contested decision should be altered to the extent that neither the child's father is transferred or the child's mother's residence determination for their child, but the subdivision
to withdraw residence determination of the child's parents and carers to transmitted. Moreover, the parental authority remains with the child's parents. Under Civil Code §
§ 1666 Civil Code § 1666, paragraph I of the Civil Code the legal guardian with parental responsibility will be withdrawn if the physical, mental or moral welfare of the child through abuse of parental care is endangered by neglect of the child, through no fault of failure or the actions of others if the parents are not willing or able to avert the danger, that is to take the necessary measures to counter the threat. Here are measures that separating the child from the parental family is connected, only if the risk can not be met by other means (§ § 1666a BGB BGB).
scale for the decision to be the best interests of the child, so the comprehensive protection of young people in development. Any risk to the child is present always, if the child has already suffered damage. But it is to accept, even if it is reasonable current concern is that if no intervention by the court, the child's welfare would be compromised, that is, the occurrence of an injury is to be expected with reasonable certainty (Palandt / Diederichsen, BGB, 68 ed, §
1666 para. PALKOBGB Civil Code § 1666 paragraph 8). A legitimate concern of future harm to the child regularly arises from incidents in the past. On the side of parental care is an abuse of parental authority is not necessary. It is sufficient that they neglect the child, that is sufficient measures to ensure the light of social, cultural and economic situation of the family an orderly and consistent training, supervision and care of the child in the family failed. It is also an undeserved failure of the parents, which is intended with the catch-acute and serious threats to the physical and mental well-being to ward off the children. The reasons for parental failure are irrelevant (OLG Brandenburg, FamRZ 2008 FamRZ 2008 Page 1556 = BeckRS 2010, BECKRS Years 920).
these circumstances are present, the court has to take necessary and appropriate security measures, including the principle of proportionality. Because Article 6 GG GG Article II Article 6, paragraph 1 GG care and upbringing of children is the natural right of parents. In this law the State may only be conducted under the State Guard official to intervene (Article 6 GG GG Article II, Article 6, paragraph 2 GG). Interference with parental rights are constitutionally justified in this case, however, because the well-being of the child at risk by the exercise of child custody parents.
The partial withdrawal of parental custody - the residence determination - And the arrangement of foster care are effective in reducing the abuse of parental care by the child's parents. The action taken complies with the principle of proportionality, because less restrictive means to prevent the continuation of child endangering behavior of the child's parents are not apparent with the same effectiveness. The partial loss of custody and placement of foster care are at the
with this activity are the child's interest is not out of proportion and are in the performance of the state guard office rather offered (this, see also BGH, FamRZ 2008 FamRZ 2008, page 45 = BeckRS 2007 BECKRS years 18522).
The interpretation of the indefinite Legal concepts of "child welfare", "hazard" and "necessary measures" is shaped by the constitutional situation. Thereafter, the education of children
is the natural right of parents and the foremost duty incumbent upon them. The parental right is, therefore, not for its own sake, but for the sake of the children. It provides, therefore, no "unbound
claim to power" of the parents towards their children, but the constitutional guarantee of parental rights is primarily the protection of the child (BVerfGE 61, BVerfGE year 61 Page 358 [BVerfGE year 61 page 371] = NJW 1983, NJW 1983, page 101, BVerfGE 72, BVerfGE Year 72 page 155 [BVerfGE year 72 page 172] = NJW 1986, NJW 1986, Page 1859). The child welfare
is therefore the reference point for the even the family courts by the Constitution passed in behalf of the National Guard Office. In addition, the child itself is of fundamental rights, for him the general right of GG Article Article 1 Article 2 in conjunction with Art GG GG stands aside (see BVerfGE 61,
BVerfGE year 61 Page 358 [BVerfGE year 61 page 371] = NJW 1983, NJW 1983, page 101).
The meaning and scope of parental rights on the necessity of taking into account the best interests of children are set by the child's will limits. For the will of the child is generally , So far this is compatible with his or her interests (see BVerfGE 55, BVerfGE year 55 page 171 [BVerfGE year 55 page 182] = NJW 1981, NJW 1981, page 217). The child is in any decision of the program due to his individuality and his will to include, above all, because to take family court decisions crucial influence on his future life and it
is affected so directly (see Federal Constitutional Court, FamRZ 2008 FamRZ 2008 page 1737 [FamRZ 2008 Page 1738] = BeckRS 2008 BECKRS 39 043 years, KG, FamRZ 2004 FamRZ 2004, page 483). This point gains with age and increasing access to the child's ability
important because it is the only way to develop a responsible and socially competent person.
out the light of these criteria a total consideration of relevant factors to ensure that the child's parents' residence determination was to escape, because otherwise the child's best D would be at significant risk. A less drastic measure is not sufficient to improve the situation of D.
a threat to the welfare of the child's D is that the child's parents because of their still on the separation plane discharged dispute, the needs of their child is not able to recognize. Already, the expert, Dr. S has the most of his eighth 4. Reimbursed on the basis of his 2009 opinion for a longer period gained knowledge in the individual states that the child's parents were only in mediation in a position to act by consensus and therefore it does not ultimately lead to success, because both parents are opposed to any further mediation. The parents were both so shrouded in dispute, providing little could separate between the couple and parental level. Parents were possible many activities for the benefit of D
not because they still had negative ties together. The parents would not have the understanding that they would pursue a joint parenting, which they would jointly exercise for the benefit of D. Is on educational Important that both would come to a reasonably congruent behavior with respect to the obligations and prohibitions of D, so that both parents play off against each other could not. To this end, it is inherent to agree on the use or prohibitions and to make recreational activities for D so that he could actually use it. This required from both parents, a rapprochement on the attitudes and educational expectations of the other.
The parents are also present - in that regard a change in their behavior since the expert opinion of the expert S under the impression the Senate, he could make himself at the hearings not occurred - Unable to agree on the child's residence D. In particular, they can not see that is taken seriously by the child's guardian D with respect to the stated intention, as it indicates a long process of shaping the child. That the son of D, has made extensive thoughts about his stay, is already
be seen that he has proposed an even more changes residence on Monday, because he was already large enough alone to go to the school bus. This he has explicitly suggested, therefore, so parents do not hit each other too often and thus have no opportunity to argue about the things concerning him. The Desire and will of the child's D is also understandable, precisely because he both parents, a good relationship of trust and a close relationship and commitment, he wants to spend his time evenly in both parents' households. The fact that D does not want to decide for or against a parent, even the utterances of the child in the personal interview
corresponds by the Senate. The parents, especially the child's father may appear in the current situation does not realize how important it is for D, that his parents agree on duration of his stay and it
here just in his view, it should be.
Both the curator ad litem and the youth department employees in this setting, the child's parents see the danger of a child welfare endangerment, since D is already a very low frustration tolerance, have, with the result, real concern that the disregard of his now even third parties expressed intention
effects of negative type on its further development leaves.
The child's parents are held - and this would be a 14-day exchange model to a high degree require - to agree on a unified concept of education for her son, D, to tolerate the ideas of each other on the issue of education and to prevent that D, the disagreement between the parents - with increasing age more and more - uses these against each other.
contrary to the child's mother was not transferred to her own residence determination and to give the child's father, an approximately equal frequency rights. Because the inability of parents to
agree in the interest and welfare of their child to D permanently enjoins it, a neutral third party - the youth office - leave the decision to the residence of the child to the anticipated controversy in the exercise of rights of access to prevent and find a lasting solution to D finally
that corresponds to its clearly expressed will. Since
both parents to their son to love and the best for him do it can be assumed that it is now in a position to participate in the necessary measures with the result that the withdrawal appears to parental concern to the sector stay provision of the Senate to be sufficient.
The Youth Office, which is intended for nurses, will have to decide, in close contact with the parents it in which the child has D in the current budget of the child's mother or father of the child reside.
's note Schriftltg.
this, see the discussion Schmid, FamFR 2010, 212 One of the conditions of withdrawal from some areas of parental concern cf. OLG Brandenburg, NJW-RR 2009, NJW-RR 2009, page 1087. See the custody decision in the custody unsuitable parents OLG Koblenz, Dec. v. 9 7. 2008 - 07/09/2008 OLGKOBLENZ document number 9 UF 104/08, BeckRS 2008 BECKRS years 22053rd
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