Kindesherausgabe, einstweilige Anordnung beantragen (Eilverfahren)

• § 1632 Bürgerliches Gesetzbuch (BGB) – Herausgabe des Kindes; Bestimmung des Umgangs; Verbleibensanordnung bei Familienpflege
• § 1666 BGB - Gerichtliche Maßnahmen bei Gefährdung des Kindeswohls
• §§ 49 ff. Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (FamFG) – Einstweilige Anordnung
• §§ 151 ff. FamFG – Verfahren in Kindschaftssachen

As part of the so-called personal care of a child, the custodial parents or carers also have the duty and right to determine the child's place of residence in addition to the care, upbringing and supervision. If parents get into a dispute about this during separation or divorce, they can seek clarification in court.

Out of consideration for the child, the family court judge will not wait for the final conclusion of proceedings if there are acute problems with custody and contact. The family court can make a temporary order in custody proceedings if immediate intervention is urgently required to protect the child. Interim orders for the return of the child can also be considered.

Interventions of this kind always presuppose that the child's welfare is at risk - for example because parents are abusing their custody rights or neglecting the children - and that this risk cannot be countered in any other way.

Note: It is advisable to seek the help of a lawyer for counselling and filing an application. You can contact lawyers via the website of the Saxony Bar Association.

Authorised applicants:

• Persons who have custody (personal care) of the child

none

You apply to the competent family court (possibly with the involvement of a lawyer) for a temporary order to hand over the child.

Procedure

• It is initially at the discretion of the family court whether it decides on the application for a temporary injunction after a prior oral hearing or in written proceedings without an oral hearing. In most cases, the other party is also given the opportunity to make a statement before a decision is made.
• The court must always hear the parents and the youth welfare office and in most cases also the child. This hearing can only be dispensed with for serious reasons. This not only serves the rights of the parties concerned, but also allows the court to gain a personal impression of the parties involved.
• If the decision has been made without an oral hearing, an application can regularly be made for a new decision to be made on the basis of an oral hearing before the family court.
• If the temporary injunction orders the surrender of the child to one of the parents, an appeal is admissible.

Enforcement of a child surrender order

If the respondent does not comply with the request, the court can order coercive measures to hand over the child to the responsible bailiff. This can lead to a search of the home and violent intervention by the police.

depending on the individual case, several days to weeks

Note: Applications for a temporary injunction are dealt with in court on an accelerated basis as so-called summary proceedings. Nevertheless, a certain processing time is to be expected.

none

Application for a temporary injunction for the surrender of the child