Legal counsel

Legal basis

With the entry into force of the reform of child law on July 1, 1998, the legal figure of the litigation for minors according to § 50 FGG introduced into the family law procedure. With the reform of the family procedural law (FamFG RG), which came into force on September 1, 2009, the curator ad litem was renamed -Processive advice- and now regulated in § 158 FamFG (law on the procedure in family matters and in matters of voluntary jurisdiction).

§ 158 procedural assistance

(1) The court shall appoint suitable legal counsel for the minor child in matters relating to his or her child, insofar as this is necessary to protect his interests.

(2) The order is usually required
1. if the interests of the child are in considerable conflict with those of their legal representatives,
2. in proceedings under Sections 1666 and 1666a of the German Civil Code, if partial or complete withdrawal of personal custody is possible,
3. if the child is to be separated from the person in whose custody is located,
4. in proceedings that involve the surrender of the child or an order to remain, or
5. if the exclusion or a substantial restriction of the right of access comes into consideration.

(3) The procedural assistant is to be appointed as early as possible. He is involved in the proceedings through his appointment. If the court refrains from appointing a procedural assistant in the cases referred to in paragraph 2, this must be justified in the final decision. The appointment of a procedural assistant or its cancellation as well as the rejection of such a measure cannot be challenged independently.

(4) The procedural counselor shall determine the interests of the child and assert it in judicial proceedings. He has to inform the child in an appropriate manner about the subject, process and possible outcome of the proceedings. Insofar as the circumstances of the individual case make it necessary, the court can assign the procedural counsel the additional task of holding talks with the child's parents and other caregivers and helping to reach an amicable settlement on the subject of the proceedings. The court must specify the type and scope of the commissioning and justify the request. The legal counsel may appeal in the child's interest. He is not the child's legal representative.

(5) The appointment should be omitted or canceled if the interests of the child are adequately represented by a lawyer or other suitable legal representative.

(6) The order ends, unless it is canceled beforehand,
1. with the final decision of the procedure or
2. with the rest of the process.