On September 26, 2023, a biological father will fight before the Federal Constitutional Court to be legally recognized as the father of his child. The child's mother had her new partner registered as such - after the biological father had filed an application to establish his paternity. The legal proceedings dragged on, and the man from Saxony-Anhalt was finally dismissed at the Naumburg Higher Regional Court.
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.
But the plaintiff 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. The mother then gradually tried to cut off contact. Sometimes he was only allowed to see his child under supervision, sometimes not at all, as the 44-year-old from near Halle (Saale) reports. Among other things, two court proceedings regarding his access rights have already been completed.
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 man, who doesn't want to read his name in public. In his opinion, the parents' conflict has so far had no impact on the three-year-old. “We separate things strictly.” Everyone involved has no influence on the child, he says, adding: "At least as far as I can tell." His son calls him dad – the new man at his mother's side too.
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 is now likely to be a consensus among legal experts that reform is necessary on this point."
The Federal Constitutional Court has also already dealt with the issue and decided in a decision in 2018 that it is relevant whether a biological father - when legal paternity was available to him - did everything to achieve it. With reference to this, the German Lawyers' Association considers the existing legal situation, as interpreted by the Federal Court of Justice, to be unconstitutional.
In a statement, the Federal Bar Association explains that paternity proceedings by the biological father are playing an increasingly important role. However, the success of a challenge should not depend on how legal paternity was previously achieved. In view of the constantly evolving relationships and partnership structures, it is no longer justifiable to place marriage as an institution per se above the biological origins of a child. “There is therefore an urgent need to adapt or supplement the current regulations accordingly.”
And that's how it could happen: The federal government has agreed on a change to parentage law. The key points will be announced this year. According to a spokesman for the Federal Ministry of Justice, this also affects Section 1600 of the Civil Code, which is the subject of the challenge.
How quickly the plans will become law and when it will come into force remains to be seen. A ruling from Germany's highest court is not expected for a few months (ref. 1 BvR 2017/21). So this could overlap with parliamentary processes.
Why is the plaintiff moving to Karlsruhe? “It’s a dream child,” he says. His mother was his childhood sweetheart and they went to school together. And she told him that it was the same the other way around. However, she now also says this about her new partner.
The plaintiff says that it is incomprehensible to him and those around him how such a situation can arise. That there is even the possibility that a biological father may not be the legal father - if he wants to be. "There are so many cases where fathers disappear and don't let anyone hear from them anymore, and don't even pay maintenance," says the man. But he wants to be actively involved in his child's development.
But according to the Higher Regional Court, the mother did not show up at the 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.
If he is able to become a legal father, he would like to fight for partial custody, says the 44-year-old. Only as a biological father that doesn't work. In this position, he could only sue for access to his child to the extent that grandparents could.
"I'm a bit nervous about the future," says the man. "My access rights are restricted. I can't expand that, I can only lose it." If he is unsuccessful, he would be willing to go to the European Court of Human Rights. "For me it's not over until I've tried everything."