2024-04-09 14:49:00
For years, the biological father of a child has been trying to establish legal paternity in court. The Federal Constitutional Court now partially agreed with him and thereby strengthened the position of fathers who have separated.
The decision of the Federal Constitutional Court is of great importance because it affects many cases in Germany that are similar to those of the plaintiff. Shortly following he became the father of a son, his partner separated from him. She entered into a new partnership. With the mother’s consent, the new life partner took over legal paternity of the child. Legal paternity comes with important powers regarding children. Only a legal father is allowed to exercise custody of a child.
Plaintiff wants legal paternity
The plaintiff tried to challenge the legal paternity of his new life partner in court because he himself wanted to become the legal father of his child. Among other things, he stated that he had cared intensively for his son from the beginning and tried hard.
However, he was unsuccessful in his appeal. His request was recently rejected by the Naumburg Higher Regional Court in Saxony-Anhalt. The court referred to a regulation in the Civil Code. According to Section 1600 of the German Civil Code (BGB), a biological father has no right of challenge if a “social-family relationship”, i.e. a closer bond, has arisen between the legal father and the child. If this is the case, a challenge is excluded. There are no exceptions to this rule.
Violation of fundamental parental rights
This is exactly what the Federal Constitutional Court has now criticized and declared the regulation in the Civil Code unconstitutional. According to Stephan Harbarth, President of the Federal Constitutional Court and Chairman of the First Senate, it violates the basic parental right according to Article 6 of the Basic Law, which every biological father can rely on: “Parents within the meaning of Article 6 Paragraph 2 Sentence 1 of the Basic Law must fundamentally have the opportunity “To maintain and exercise parental responsibility for their children.”
And according to the Constitutional Court, this also applies in principle to a biological father. In their ruling, the judges referred to the fact that in the specific case, the plaintiff’s close bond with his son had not yet received any legal attention at all, precisely because the current legal situation does not allow this. From a constitutional point of view, this is not acceptable, according to court president Stephan Harbarth:
Current family law does not take sufficient account of the basic parental rights of biological fathers. Because it consistently excludes biological fathers from legal paternity even if they themselves have a socio-familial relationship with the child and constantly strive for legal paternity.
Lawmakers must act by mid-2025
With its ruling, the Federal Constitutional Court obliged the legislature to adopt new regulations by June 30, 2025 at the latest. Until then, the unconstitutional provision may remain in force in order to allow biological fathers to continue to have the right to challenge legal paternity. However, ongoing proceedings before the family courts must be suspended upon request.
The plaintiff from Saxony-Anhalt will most likely also make use of this option. His lawyer explained that they would then have to wait until the legislature passed a new regulation on contesting paternity.
The plaintiff’s reaction to the verdict was correspondingly cautious. He didn’t show any real joy. Whether he will ultimately be granted the right to challenge is still completely open.
Federal Justice Minister Marco Buschmann wants to change the right of appeal and also strengthen the rights of biological fathers. In the future, the family courts should weigh up the matter. They should decide in each individual case whether, in the best interests of the child, “the interest in the challenge outweighs the interest in the continuation of the previous assignment”. In cases of doubt, however, priority should continue to be given to “the interest in preserving the existing family”.
Buschmann therefore wants to maintain that a newly created family remains strongly protected by law following a separation. This might then come at the expense of many biological fathers who also want to fight for legal paternity in court.
Three legal parents possible in the future
When redesigning family and child custody law, the Federal Constitutional Court gave the legislature wide latitude and even changed its previous case law to do so. Until now, Karlsruhe had stipulated that there might only ever be two legal parents for the benefit of the child. According to the current ruling, the legislature might allow both the biological father and a new life partner of the mother to take over legal paternity and there would then be three legal parents along with the mother.
Federal Justice Minister Buschmann, who welcomed today’s decision by the Constitutional Court, pointed out that such a change was not planned by the traffic light coalition. It will therefore continue to be the case in the future that a child only has two legal parents.
File number: 1 BvR 2017/21
1712677435
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