A mother prevents the father of their son from being legally recognized in the role. Now the case ends up at the highest German court.
A biological father goes to the Federal Constitutional Court in order to be legally recognized as the father of his child. “It’s a dream child,” says the 44-year-old from Saxony-Anhalt, explaining his now three-year-old son. He wants to be actively involved in his child’s development.
If he becomes a legal father, he would like to fight for partial custody. This isn’t possible if you’re the biological father, says the man who doesn’t want to read his full name in public. In this position, he could only sue for access to his son to the extent that grandparents could. “My access rights are restricted. I can’t expand that, I can only lose it.”
The problem
The registry office had registered the mother’s partner as the legal father with her consent – after the biological father had submitted an application to establish his paternity. The legal proceedings dragged on and the plaintiff was ultimately dismissed at the Naumburg Higher Regional Court (OLG).
This was based on the case law of the Federal Court of Justice, according to which the established biological father’s right to challenge paternity is excluded without exception if there is a socio-familial relationship between the child and the legal father at the time of the last oral hearing at the family court.
This is assumed if the man and the mother are married or the man and the child have lived together at home for a long time. The latter was the case in the specific constellation.
fought for access rights
But the plaintiff from near Halle (Saale) says that for the first month and a half after the birth he lived under the same roof with his then partner and their son. After that, the mother gradually tried to cut off contact. Sometimes he was only allowed to see his child under supervision, sometimes not at all. Among other things, two court proceedings regarding his access rights have already been completed.
According to the Higher Regional Court, the mother did not appear at an agreed appointment at the registry office to recognize paternity. The same applied to two placement attempts by the youth welfare office. The woman reportedly has five other children from three different men.
Her lawyer says before the Federal Constitutional Court that the biological father’s constitutional complaint is inadmissible. He accused the plaintiff of using Germany’s highest court to correct errors from the family court proceedings.
Legal reform necessary
According to family law expert Christine Budzikiewicz from the University of Marburg, cases like this are not particularly common in practice, but they do happen. “In terms of legal policy, the constellation has been under discussion for a long time,” explains the professor. “There should now be a consensus among legal experts that reform is necessary on this point.”
The case also makes it clear that relationships, partnerships and family structures can change. Those consisting of father, mother and child exist just like married parents – but they are by no means (anymore) an exceptionless reality.
Constitutional Judge Henning Radtke also made it clear at the beginning of the oral hearing that the court had assumed in an earlier decision that more than two parents could have a negative impact on the child and the child’s well-being due to possible disputes over jurisdiction and role conflicts. The basis of this assumption now needs to be clarified.
Numerous experts make it clear that there is a particular lack of studies on constellations such as the one being negotiated. Sabine Walper from the German Psychological Society, for example, draws parallels with stepfamilies, in which three people sometimes take responsibility for one child. There are by no means any more conflicts there.
In addition, the number of possible bonds that a child forms is not limited to two people, says Walper, referring to grandparents, siblings and teachers. Peter Zimmermann from the Professional Association of German Psychologists emphasizes that in order to assess the commitment of those involved, one must examine the individual case.
Change in parentage law?
The Federal Constitutional Court has already dealt with the issue once and decided in a decision in 2018 that what is relevant is whether a biological father – when legal paternity was available to him – did everything possible to achieve it.
Therefore, some experts such as the German Lawyers’ Association consider the existing legal situation, as interpreted by the Federal Court of Justice, to be unconstitutional. The Federal Bar Association is also calling for the current regulations to be adapted to the realities of life.
A verdict in the current case is not expected for a few months (ref. 1 BvR 2017/21). This could then have an impact on the change in parentage law planned by the traffic light coalition in the federal government.
Federal Government: Plans changes to parenthood rules
In the course of this, agreements on legal parenthood should be made possible, as Angelika Schlunck, State Secretary in the Federal Ministry of Justice, says. Further priorities are to introduce the motherhood of another woman and to give children more rights to receive information about their biological parentage.
According to Schlunck, all of this will have an impact on questions of contesting paternity and maternity. “We’re thinking about how we should structure this in the future.” Since the issue is “not entirely trivial,” it will probably take until the end of the legislative period in summer 2025 for the proposals to be developed.
Father will continue to fight
The plaintiff would be prepared to go to the European Court of Human Rights if he was unsuccessful in Karlsruhe. “For me it’s not over until I’ve tried everything.”
He now sees his child for three hours every two weeks. “It was a hard road to get there.” He announced by email that he would pick up the boy as agreed. He lives ten minutes away by car. The answers are usually two letters: OK.
“When I pick up my child, he sees me, runs towards me and I get kisses,” says the 44-year-old. His son calls him daddy. But also the new man at his mother’s side.