What is an adoption and how does it work?
Adoption is the“adoption as a child“. It establishes a legal parent-child relationship, regardless of biological parentage. Adoption as a child is permissible if it is in the child’s best interests and it is to be expected that a parent-child relationship will develop between the adopter and the child (Section 1741 BGB).
The application for “adoption as a child” must be notarized, § 1752 para. 2 sentence 2 BGB. However, the adoption does not come into being when the application is submitted to the notary. The notarial deed must first be submitted to the family court together with other documents. The family court then decides. The adoption becomes effective with the (positive) decision of the family court (Section 1752 (1) BGB).
As a rule, the following documents must be submitted to the family court with the application to adopt the child:
Death certificate if one of the child’s parents has died;
- Marriage certificate of the adopting spouses;
- Birth certificate of the child;
- Birth certificate of the adopter.
- Proof of the nationality of the child to be adopted. In most cases, information from the police authority is sufficient.
- Medical certificates (these do not necessarily have to be official medical certificates) about the child to be adopted and the adopter(s).
- In the case of adoption of a minor stepchild: Certificate from the adoption agency in accordance with § 9a para. 2 AdVermiG on counseling (this is a mandatory consultation that must be carried out beforehand).
The family court also requests further documents in most cases:
- Criminal record of the adopter(s);
- Opinion of the youth welfare office (Sections 189, 194 FamFG)
- if the child or the adopter has a foreign nationality or is stateless, or if the adopter or the child live or habitually reside abroad, also the statement of the central adoption office of the Land Youth Welfare Office, possibly the Land Youth Welfare Office
If necessary, further requirements, e.g. the consent of the father, must be submitted.
Adoption of minors vs. adoption of adults:
Adoptions are often sought in patchwork families in order to create uniform relationships. Both the adoption of a minor and the adoption of an adult can be considered, each of which is subject to different requirements; in the case of minors, the best interests of the child have top priority. Adults can be adopted “morally justified” if a parent-child relationship already exists (Section 1767 BGB). The adoption of an adult may not be pronounced if it conflicts with the overriding interests of the children of the adopter or the adoptee.
There are two options for the adoption of adults:
The adoption of an adult with “weak effect” and the adoption of an adult with“strong effect“, the latter being very similar in effect to the adoption of a minor.
The differences lie in the proximity of the degree of kinship and the resulting consequences under inheritance and maintenance law.
In the case of an adoption of a minor and an adoption of an adult with “strong effect”, the consequences are more serious: the adoptee loses the connection to the previous family and gets a new family with the adopter, which also includes other family members. Any other children will therefore have a new sister or brother; the parents of the adopter will become his grandparents. Mutual inheritance, compulsory portion and maintenance rights arise with mirror-image obligations.
The adoption of an adult with weak effect maintains the legal relationship between the adopted person and his or her biological relatives. The effects do not extend to the relatives of the adopter. The rights and obligations arising from the relationship of the adopted person and his/her descendants (children, grandchildren) to their relatives are not affected by the adoption. However, the adopter’s maintenance obligation takes precedence; he/she is obliged to provide maintenance before the biological relatives of the adopted child (Section 1770 (3) BGB). The adopted child therefore continues to inherit from his or her biological parents. If the adoptee himself dies without having children, his adoptive and biological parents inherit him. If the adoptee dies after the adopter and is then without children and without a will, he or she inherits with weak effect to his or her biological relatives in the case of an adult adoption.