What is foster guardianship?

Establishment of the foster guardianship

Foster guardianship is established by an agreement. More specifically, by an authentic deed, between the candidate foster guardian and the child, drawn up by a notary or the justice of the peace (art. 475ter, 1st paragraph old Civil Code). 

If the child has reached the age of 12, he can consent to foster guardianship himself. However, if the child is under 12, his legal representative will have to consent. 

The foster guardianship comes into effect only after the agreement is ratified by the family court (art. 475ter, 2nd paragraph old Civil Code).

Requirements for foster guardianship

For foster guardianship, three cumulative requirements must be met, these are contained in Article 475bis, 1st paragraph old Civil Code. 

First, the person, who wishes to become a foster guardian, must be at least 25 years old. He agrees to support, educate and enable the child to earn a living. Secondly, it must be about a non-custodial minor child. Third, there must be consent of the persons whose consent is required for the adoption of minors. 

If the candidate foster guardian is married, he must also obtain the consent of his spouse (Art. 475bis, 2 paragraph old Civil Code). 

Obligations during foster guardianship

First, the foster guardian has a maintenance obligation towards the child. This is not reciprocal, nor does it end automatically when the foster guardianship ends. Thus, upon the death of the foster guardian, the needy foster child will receive funds from the foster guardian's inheritance. The foster guardian may even be obliged to pay compensation if it turns out that the foster child is unable to earn his living when he is not of age (art. 475bis, 1st paragraph old Civil Code and art. 475quinquies, 1st and 2nd paragraphs old Civil Code).

Furthermore, the foster guardian is responsible for managing the child's assets, but has no legal enjoyment. He may not charge maintenance and education costs against the child's income, management costs may. For his management, as with guardianship, he is accountable (art. 475quater, 1st paragraph and art. 475septies old Civil Code). 

Also, the foster guardian exercises the right of custody over the child, in so far as the child has its habitual residence with him (Art. 475quater, 2nd paragraph old Civil Code). This includes not only the right to have the child with him on a continuous basis and claim for release, but also the right of care. This allows the foster guardian to make day-to-day parenting decisions. However, the fundamental decisions regarding parenting still fall to the parent(s)/guardian. If the foster child does not have its habitual residence with the foster guardian, the foster guardian only exercises asset management and the parent(s)/guardian exercises all other parental authority powers. 

End of foster guardianship

Foster guardianship takes its end at (art. 475quinquies old Civil Code):

• maturity of the foster child;
• death of the foster child or foster guardian;
• discharge of the foster child;
• adoption of the foster child.

The family court can also terminate foster guardianship at the request of ( art. 475sexies old Civil Code):

• the foster guardian;
• those who have consented to the foster guardianship in accordance with art. 475bis old Civil Code;
• those who have acknowledged or legitimised the child (after establishment of the foster guardianship);
• the public prosecutor.