A child is born and the parents separate shortly after birth. The legal father becomes the mother’s new life partner. Can the biological father contest this? The Federal Constitutional Court will decide on this.
The dispute, which the Federal Constitutional Court dealt with in detail during the oral hearing last September, was quite emotionally charged: When his son was born, he immediately took intensive care of him, said the plaintiff, who is the child’s biological father is. But then his mother, his partner at the time, left him and turned to a new partner. Since then, he has only seen his son rarely, currently every 14 days, and then for just three hours.
This will only change if he is recognized as the legal father. He tried several times to have himself registered as such at the registry office. But the child’s mother did not show up for two agreed appointments. The legal father ultimately became the new life partner, with the necessary consent of the mother. The fact that he himself is only the biological father is not enough for him.
“I want to take care of my child”
The biological father says: “It’s my child. I want to take care of my child. Not being allowed to do that is very hard. As a biological father, you have very limited access rights. And you can only expand that if you also have legal paternity holds.”
For example, only as a legal father would he have the chance to exercise custody of his child. He therefore tried to challenge the paternity of his new partner in court – without success. The Naumburg Higher Regional Court decided that he was not entitled to such a right of challenge.
Before the Higher Regional Court failed
The court referred to the relevant provisions in the Civil Code (BGB): According to Section 1600 Paragraphs 2 and 3 BGB, a biological father has no right of challenge if a “social-family relationship” has already arisen between the child and the legal father – if so there is a closer bond between the child and the legal father.
With this regulation, the legislature wanted to protect new family constellations that arose after a separation. The Naumburg Higher Regional Court found that such a close relationship had developed between the child and the new life partner.
Bar Association supports the plaintiff
The biological father filed a constitutional complaint against this. He believes that the legal regulation violates his basic parental right according to Article 6 of the Basic Law. Because he also built a relationship with his child. This is also the view of the Federal Bar Association, whose representative also spoke at the hearing before the Federal Constitutional Court.
Attorney Christian Kirchberg believes that the plaintiff should also be granted legal paternity because he has always tried to care for his child: “In my opinion, he must win because he did everything to be recognized as the legal father.”
Could there be two legal fathers?
The Federal Constitutional Court will now clarify whether the plaintiff’s fundamental parental rights were violated or not. No clear trend was apparent during the September hearing. In this respect, it is unclear how the responsible First Senate will decide.
The question was also discussed during the hearing as to whether such conflicts could perhaps be resolved by the legislature allowing two legal fathers. In 2003, however, the Federal Constitutional Court decided that legal parenthood must be limited to two parents because only this would be in the best interests of the child.
Government plans changes to Childhood law
What is important in this context is the fact that the traffic light coalition wants to change child custody law during the current legislative period. In January of this year, Federal Justice Minister Marco Buschmann presented a corresponding key points paper.
The draft shows that the federal government has carefully studied the case, which is now being decided by the Federal Constitutional Court. According to Buschmann’s ideas, it should remain the case that a child cannot have more than two legal parents. To this end, the rights of biological fathers should be strengthened. This will make it easier for biological fathers in the future to challenge the paternity of another man, even if there is a socio-familial relationship between him and the child.
In the future, the family courts should examine in each individual case “whether 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”.
File number: 1 BvR 2017/21
Klaus Hempel, SWR, tagesschau, April 9, 2024 6:48 a.m