Parental responsibility, separated parents and legal representation

For your child's application, we assess not only residence, identity and personal requirements but also who may validly represent the child. This also clarifies which procedural steps you or your child must take personally. Where parents are separated, parental responsibility has been determined abroad or a guardian has been appointed, this question is often more complex than completing the application. It is particularly important to distinguish between day-to-day care, parental responsibility and a young person's own capacity to act in the proceedings.

The Nationality Act contains its own age rule. Under § 34 StAG, a person generally has capacity to act in proceedings once they turn 16, unless one of the statutory exceptions applies. A younger child therefore generally needs a legal representative in naturalisation proceedings. Representation is also possible for a child with an independent entitlement to naturalisation; it is not confined to naturalisation together with the parents.

The legal representatives are usually the parents who hold parental responsibility. § 1629 BGB provides that parental responsibility includes representation. Where parents share parental responsibility, they generally represent the child jointly. One parent may be able to represent the child alone if they hold sole parental responsibility for the relevant area or have been given authority to decide the specific matter under § 1628 BGB.

The naturalisation authority therefore needs to know who holds parental responsibility and the scope of that authority. A birth certificate can establish parentage, but does not answer the question of current parental responsibility in every situation. Nor does a divorce order necessarily contain a decision granting sole parental responsibility. What matters is the documentation, declarations and court decisions that actually apply. The underlying rule is set out in § 1629 BGB.

Where both parents hold parental responsibility jointly, the parent who organises contact with the authority cannot decide alone whether the child should acquire German citizenship. Naturalisation is a matter with far-reaching legal implications. It permanently changes the child's citizenship status and may have further consequences under foreign law. It is therefore not simply an everyday decision about school supplies, leisure activities or ongoing care.

We organise the evidence so that the consent of both parents entitled to represent the child is clear. We clarify the required declaration and signature form early. A valid authorisation can make the process easier, but cannot replace consent that has not actually been given. If only one parent attends an appointment, this is therefore not automatically a problem; what matters is their legal authority and the evidence of it.

We too can represent your child only on the basis of valid instructions. Authorisation by one parent does not remove the other parent's shared parental responsibility. It would therefore be wrong to try to bypass an existing disagreement simply by appointing a representative. The first step is to establish who may make decisions for the child.

After separating, parents generally retain their existing shared parental responsibility unless a legal change has taken place. The fact that a child lives mainly with one parent does not automatically give that parent sole parental responsibility. Nor does paying maintenance or rarely exercising contact rights, in itself, conclusively establish who may legally represent the child.

For parents living apart, § 1687 BGB distinguishes between everyday matters and matters of substantial importance. Where parental responsibility is shared, the latter generally require mutual agreement. Because naturalisation has a permanent effect on the child's status, it falls into this category. We distinguish the primary carer's everyday authority from comprehensive sole decision-making power.

A court order under § 1671 BGB may transfer all parental responsibility or only part of it. The precise terms of the order matter. For example, a parent with sole authority to determine the child's habitual residence does not automatically have every decision-making power in citizenship matters. The complete relevant decision should therefore be submitted, rather than a brief statement that the parent has “custody”. The distinction follows from § 1687 BGB and § 1671 BGB.

Where the parents are not married to each other, shared parental responsibility may arise, in particular, through declarations of parental responsibility, a subsequent marriage or an order of the family court. Otherwise, § 1626a BGB provides for the mother to hold parental responsibility. A simple acknowledgement of paternity is not in every case also a declaration of shared parental responsibility. Legal paternity and parental responsibility therefore need to be evidenced separately.

During preparation, we examine declarations of parental responsibility and suitable evidence of the current arrangements. The evidence required depends on the family's history. For older certificates, we also check later declarations of parental responsibility, marriage and court changes. The proceedings must reflect the child's current legal position.

Where a family's history involves more than one country, parental responsibility cannot necessarily be determined solely by reference to the standard German rule. Foreign decisions or parental responsibility arising by operation of foreign law may need to be taken into account. A mother living in Germany must therefore not invariably be treated as holding sole parental responsibility merely because there is no German declaration of parental responsibility. § 1626a BGB is the starting point for the German rules, but does not replace an assessment of international aspects.

A parent who holds parental responsibility does not lose that legal position by living abroad. The necessary involvement can often be arranged through an appropriate declaration and proof of identity. We specifically clarify required certifications, translations and other formalities. A simple statement over the telephone that the other parent agrees is not a reliable substitute for required evidence.

If a parent cannot be reached, we distinguish that practical difficulty from the legal authority to represent the child. An unknown address does not automatically turn shared parental responsibility into sole parental responsibility. Attempts to make contact and the known factual circumstances may be relevant to a family court assessment. They do not, however, in themselves replace the missing decision or consent.

Foreign decisions on parental responsibility may cause particular difficulties. Their content, validity and whether they can be given legal effect in Germany need to be assessed. A translation makes the content accessible, but does not by itself resolve every question of recognition. We review international parental-responsibility documents early, especially before a relevant birthday.

If parents with shared parental responsibility cannot agree on a matter of substantial importance to the child, § 1628 BGB provides a route through the courts. On application, the family court may transfer authority to decide the specific matter to one parent. This does not necessarily involve removing the other parent's parental responsibility entirely. The court's order can be confined to the question concerned.

For naturalisation, we set out your child's specific interests. These may include their settled life in Germany, their own views, the consequences for existing citizenships and their family relationships. A general conflict between the parents does not replace this assessment focused on the child. The child's citizenship must not be treated merely as a tool in a dispute between the parents.

The naturalisation authority is not the family court. It cannot resolve a dispute about missing decision-making authority simply by believing one parent more readily or finding that parent's wish for naturalisation more convincing. If authority has been transferred by a court, the precise scope of that transfer must be evidenced. The statutory basis for a transfer relating to a specific matter is § 1628 BGB.

The sixteenth birthday significantly changes a young person's procedural position. Under § 34 StAG, they can generally submit their own naturalisation application and make personal declarations. They do not need their legal representatives' consent merely because they remain under 18. This special rule in nationality law differs from the position in many other proceedings.

This also means that parents cannot simply substitute their own statements for the personal commitments and declarations of a young person who has capacity to act in the proceedings. They may provide support, gather documents and communicate on the basis of a valid power of attorney. However, the wish to acquire citizenship and the necessary personal declarations remain the young person's own. Decisions and correspondence from the authority must also be handled in accordance with their procedural position.

The exceptions in § 34 must still be observed. A lack of legal capacity excludes the person's own capacity to act in proceedings. Where a court-appointed legal custodian is involved, the provision requires not only an appointment covering the matter but also a reservation of consent under § 1825 BGB; the appointment alone is not sufficient. Nor does a disability automatically mean that a person lacks legal capacity. If your child turns 16 during processing, we clarify the personal declarations now required. The detailed article on age limits explains the transition and the changes to the language and knowledge requirements.

If a child lives with a foster family, the foster carers do not automatically become the child's legal representatives in every legally significant matter simply because they provide day-to-day care. What matters is whether, and to what extent, the relevant powers have been transferred to them or a guardian has been appointed. Their close personal relationship with the child does not replace evidence of the legal scope of their duties.

A guardian can assume legal responsibility in place of the parents. § 1773 BGB sets out the conditions for guardianship. Evidence of the appointment and the precise scope of representation must be submitted for the naturalisation proceedings. Where there are particular restrictions or matters reserved for the court, it must also be clarified whether the specific act requires a further decision. The statutory conditions for guardianship must be distinguished from a simple care arrangement.

Likewise, marrying a child's parent does not automatically give a step-parent full parental responsibility and authority to represent the child. Adoption can change the legal position, but must be effective and assessed separately. Before applying for naturalisation, we also check whether adoption already resulted in acquisition of nationality. If so, naturalisation proceedings would not be the appropriate starting point.

If the parents held parental responsibility jointly and one dies, § 1680 paragraph 1 BGB generally provides for parental responsibility to pass to the surviving parent. The death certificate and the previous parental responsibility arrangements may therefore be important evidence of authority to represent the child. Once the legal position is evidenced, we explain why the deceased parent's consent is no longer required.

If, by contrast, the deceased parent held sole parental responsibility under the provisions specified in § 1680 paragraph 2, the law provides for the family court to transfer parental responsibility to the other parent, provided this is not contrary to the child's best interests. This situation differs from one in which parental responsibility was previously shared. Here too, evidence of parentage alone must not be treated without further examination as proof that the surviving parent now holds sole parental responsibility.

Independently of the child's application, the death of a German spouse may trigger a special naturalisation rule for the surviving foreign parent. This is subject to its own requirements, particularly the one-year time limit in § 9 paragraph 2 StAG. The article on separation, divorce and death explains this additional question. It is separate from the right to represent the child in the proceedings.

Valid representation does not yet establish whether the child meets the substantive requirements for naturalisation. Naturalisation together with a parent involves examining, among other things, whether the relevant parent's naturalisation qualifies and whether there is a genuine family relationship in practice. Conversely, a child may meet the personal requirements for naturalisation while their representation still needs to be clarified.

Family life is not confined to a single shared home. Separated parents can provide regular care and take a close interest in the child's life across different households. Legal parental responsibility and actual day-to-day family life should therefore each be explained with appropriate evidence. A contact calendar does not by itself prove parental authority; a document establishing parental responsibility does not by itself prove contact in practice.

Nor does every parent necessarily have to become naturalised themselves. Whether naturalisation together with one parent or on the basis of the child's own entitlement is appropriate depends on the specific requirements. The decision-making authority of another parent who holds parental responsibility may nevertheless remain relevant while the child is under 16. The article on naturalisation together with a parent or a separate application explains these routes.

We start with a chronology of legally relevant family events: birth, marriage, declarations of parental responsibility, separation, court decisions, adoption or death. The relevant documents can then be matched to those events. For court decisions, the operative terms of the decision matter more than a shortened private summary. For international documents, the translation and their legal effect must be considered separately.

A lawyer's power of attorney answers a different question from parental responsibility: it determines who acts as an authorised representative before the authority. It cannot create legal authority to represent the child where the person instructing the lawyer lacks that authority. Particularly where parents are in conflict, decision-making authority must therefore be clarified first, followed by the scope and grant of the power of attorney. The overview of legal representation and authorising a lawyer explains this distinction.