The Federal Constitutional Court has declared the regulations governing custody rights for unmarried fathers unconstitutional. Currently, those affected can only obtain 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 for both parents if this is in the best interests of the child. The constitutional court thus implemented a ruling by the European Court of Human Rights from December 2009. The court had criticized German child custody law for favoring unmarried mothers over fathers.
According to the Strasbourg ruling, the German regulation stipulating that unmarried fathers can only obtain joint custody with the express consent of the child's mother violates the prohibition of discrimination in the European Convention on Human Rights. Federal Justice Minister Sabine Leutheusser-Schnarrenberger (FDP) had announced a change in the law in favor of unmarried fathers just a few days ago, in light of the Strasbourg ruling.The constitutional complaint of a man from North Rhine-Westphalia, the father of a son born out of wedlock in 1998, was thus successful. The boy's mother and father separated during the pregnancy. Since his birth, the child has lived in his mother's household but has regular contact with his father. The mother refused to sign a declaration regarding the exercise of joint parental custody. The Bad Oeynhausen District Court rejected the father's application against this decision, citing existing legal principles. His appeal to the Hamm Higher Regional Court was unsuccessful. Therefore, the unmarried father filed a constitutional complaint. (Case number: Federal Constitutional Court 420/09) |
VeV comment In stark contrast to the Swiss Federal Court, the highest German court has sent a clear signal in favor of (unmarried) fathers. While the Swiss Federal Supreme Court, in an act of preemptive obedience, is already curtailing joint custody rights even before their introduction (see also here), the German Federal Constitutional Court is following the ruling of the European Court of Human Rights from December 2009 and declaring the veto right of unmarried mothers unlawful! This significantly strengthens the position of unmarried fathers in Germany. Details can be found here. The reform of joint custody laws is practically imminent in Switzerland as well – the Federal Council intends to submit its long-awaited proposal to Parliament this year. However, it was already revealed in December 2009 that even under the new draft, unmarried fathers will be worse off, as they are only to be granted the right to apply for joint custody. It is hoped that this decision from Germany will also set a precedent here, namely that both parents should generally have custody, except in cases of justified concerns. Only these cases should have to be resolved in court. |