The Federal Constitutional Court has declared the regulation of custody rights for unmarried fathers to be unconstitutional. Currently, those affected can only receive joint custody with the mother's consent - this violates the constitutionally protected parental rights.
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(c) August 2010 Spiegel Online
From now on, family courts must order joint custody of the father and mother if this is in the best interests of the child. The constitutional guardians were thus implementing a ruling by the European Court of Human Rights from December 2009. It had complained that German child custody law favored unmarried mothers over fathers.
According to the Strasbourg ruling, the German regulation, according to which unmarried fathers can only obtain joint custody with the express consent of the child's mother, violates the ban on discrimination in the European Convention on Human Rights. Federal Justice Minister Sabine Leutheusser-Schnarrenberger (FDP) announced a change in the law in favor of unmarried fathers just a few days ago in view of the Strasbourg ruling. The constitutional complaint by a man from North Rhine-Westphalia, who is the father of a son born out of wedlock in 1998, was successful. The boy's father and mother separated during the pregnancy. The child has lived in the mother's household since birth, but has regular contact with his father. The mother refused to provide a declaration regarding the exercise of joint parental responsibility. The Bad Oeynhausen district court rejected an application by the father to the contrary with regard to the existing legal situation. The complaint lodged against this with the Hamm Higher Regional Court was unsuccessful. The unmarried father therefore filed a constitutional complaint. (File number: Federal Constitutional Court 420/09) |
VeV comment In complete contrast to the Swiss Federal Court, the highest German court has sent a clear signal in favor of (unmarried) fathers. While the Swiss Federal Court, in anticipatory obedience, curtails joint custody before its introduction ( see also here ), the Federal Constitutional Court follows the ruling of the European Court of Human Rights from December 2009 and declares the unmarried mother's right of veto to be illegal! This significantly strengthens the position of unmarried fathers in Germany. Details can be found here The new regulation of joint custody is almost just around the corner in Switzerland - the Federal Council wants to bring its long-awaited message on this to parliament this year. However, it was already known in December 2009 that unmarried fathers would be worse off in the new draft as they would only be given the right to apply. It remains to be hoped that this decision from Germany will also set the direction in this country, namely that both parents should in principle have custody, unless there are justified objections to the contrary. Only these cases should have to be resolved in court. |