A mother separates from the biological father of their child. Legal father becomes her new life partner. Can the biological father contest this? The Federal Constitutional Court is now deciding on this.
The Federal Constitutional Court is today dealing with a constitutional complaint from a man who wants to be recognized as the legal father of his biological son. The child’s mother separated from him shortly after the birth. She had found a new life partner.
Immediately after the separation, the biological father still had the opportunity to regularly look after his son. But a little later his mother refused to let him have contact with him.
Together with his ex-partner, he had arranged an appointment at the registry office of the relevant municipality for the recognition of his legal paternity. But the mother didn’t show up for the appointment and missed two more. Instead, the new life partner – with the mother’s consent – took over legal paternity of the child.
No custody without legal paternity
The biological father tried to challenge this in the relevant family courts. He also wants to be the legal father. Just being the biological father is not enough for him. “It’s my child. I want to take care of my child,” says the father, who did not want to be named. “Not being allowed to do that is very hard. The fear of completely losing the child is there.” The legal means available are very limited.
In fact, it is only in the case of legal paternity that a father has significant say when it comes to the child’s interests. Joint custody without legal paternity is ruled out from the outset. According to the plaintiff, it is all the more important for him to be recognized as the legal father.
“As a biological father, you have very limited access rights,” emphasizes the man. “And you can only expand that if you also have legal paternity.”
No Right to challenge in “social-family relationships”
However, the family judges at the Naumburg Higher Regional Court in Saxony-Anhalt rejected his application for challenge in the second instance. Instead, they decided to award legal paternity to the new life partner. They referred to the relevant provision in the Civil Code, Section 1600 BGB. After that, it is only possible to challenge existing legal paternity within narrow limits.
A biological father has no right of challenge if a “social-family relationship” has arisen between the child and the legal father, i.e. if a closer bond has developed between the two. The Naumburg Higher Regional Court found that such a relationship had arisen between the child and the new life partner.
Father sees his fundamental right violated
The biological father filed a constitutional complaint against this. He believes that the legal regulation violates his fundamental right as a father. With his lawsuit he wants the Federal Constitutional Court to force the legislature to change the regulation in his favor. He can rely on a statement from the Federal Bar Association. Its family and constitutional experts come to the conclusion that the constitutional complaint is well-founded. Among other things, they point out that the plaintiff did everything from the start to achieve legal paternity.
The structure of the Federal Constitutional Court’s proceedings shows that the responsible First Senate will deal in detail with the attachment behavior of children. Family experts will also have their say during the oral hearing. A verdict is not expected for a few months at the earliest.
File number: 1 BvR 2017/21