Legal Counsel

Legal Basis

Introducting the reform of the law of parent and child on 1 July 1998, the legal figure of the guardian ad litem for minors in accordance with §50 FGG was introduced into family law proceedings.

With the reform of family procedural law (FamFG RG), which came into force on 1 September 2009, the guardian ad litem was renamed -Verfahrensbeistand- and is now regulated in §158 FamFG (Law on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction).

§ 158 FamFG - FGG Procedural Counsel

(1) The court shall appoint a suitable counsel for the minor child in child custody matters concerning the child's person, insofar as this is necessary to the extent that this is necessary to safeguard his or her interests.

(2) The appointment shall normally be required,

  • if the child's interest is in significant conflict with that of his or her legal representatives,
  • in proceedings under §§ 1666 and 1666a of the Civil Code, if the partial or complete deprivation of personal custody is being considered,
  • if there is to be a separation of the child from the person in whose care the child is,
  • in proceedings which have as their object the surrender of the child or a retention order, or
  • if the exclusion or substantial restriction of the right of access is being considered.

(3) The guardian ad litem shall be appointed as early as possible. He or she shall be included in the proceedings as a party by virtue of his or her appointment. If the court refrains from appointing a guardian ad litem in the cases referred to in paragraph 2, reasons shall be given in the final decision.

The appointment of a guardian ad litem or its revocation as well as the refusal of such a measure shall not be subject to independent appeal.

(4) The guardian ad litem shall determine the interests of the child and assert them in the court proceedings. He or she shall inform the child in an appropriate manner about the subject matter, course and possible outcome of the proceedings.

If required by the circumstances of the individual case, the court may assign the guardian ad litem the additional task of conducting discussions with the parents and other persons close to the child and of helping to reach an amicable settlement on the subject matter of the proceedings.

The court shall specify the type and scope of the assignment and give reasons for the assignment. The guardian ad litem may appeal in the interests of the child. He or she is not the legal representative of the child.

(5) The appointment shall be omitted or revoked if the interests of the child are adequately represented by a lawyer or other suitable procedural representative.

(6) The appointment shall end unless it is terminated earlier,

  • with the legal finality of the decision concluding the proceedings, or
  • with the other conclusion of the process.