Federal Constitutional Court - Press office -
Press release no. 57/2010 of 3 August 2010
Order of 21 July 2010 – 1 BvR 420/09 –
Exclusion from parental custody of the father of a child born out of
wedlock when mother refuses consent is unconstitutional
When the Act Reforming the Law of Parent and Child (Gesetz zur Reform
des Kindschaftsrechts) entered into effect on 1 July 1998, § 1626a of
the German Civil Code (Bürgerliches Gesetzbuch – BGB) for the first time
gave the opportunity to parents who are not married to each other to
have joint parental custody of their children, regardless of whether or
not they live together. The requirement for this is that this is their
intention and both parents make declarations of parental custody to this
effect (§ 1626a.1 no. 1 BGB); failing this, the mother retains sole
parental custody of a child born out of wedlock. A transfer of sole
parental custody from the mother to the father where the parents
permanently live apart may also, under § 1672.1 BGB, only be effected
with the consent of the mother. The father of a child born out of
wedlock may be given parental custody against her will only if parental
custody is removed from the mother on grounds of endangerment of the
best interests of the child, if her parental custody is permanently
suspended or if she dies.
As early as in the year 2003, the Federal Constitutional Court stated
that § 1626a.1 no. 1 BGB would prove to be incompatible with the
parental rights of the father under Article 6.2 of the Basic Law
(Grundgesetz –GG) if it transpired – contrary to the assumption of the
legislature – that there were a large number of cases where, for reasons
not based on the best interests of the child, the parents of children
born out of wedlock did not have joint custody (Decisions of the Federal
Constitutional Court (Entscheidungen des Bundesverfassungsgerichts –
BVerfGE) 107, 150 et seq.). The legislature was instructed to review the
legislation in this respect. In its decision of 3 December 2009, the
European Court of Human Rights (ECHR) held that the general exclusion of
judicial review of the initial attribution of sole custody to the mother
was disproportionate with regard to the aim pursued, that is, the
protection of the best interests of a child born out of wedlock (see
ECHR, no. 22028/04).
The complainant is the father of a son who was born out of wedlock in
1998. The parents separated when the mother was pregnant. Their son has
lived in the mother’s household since he was born, but he has regular
contact with his father. The complainant acknowledged his paternity. The
mother refused to make a declaration of joint parental custody. When the
mother planned to move with the child, the complainant applied to the
Family Court for the mother to be partially deprived of parental custody
and for the right to determine the child’s place of abode to be
transferred to himself; in the alternative, he applied for sole parental
custody to be transferred to himself or for the court to give surrogate
consent to joint custody in place of the mother. The Family Court
dismissed the applications, applying the current law, on the grounds
that the mother’s consent, which was necessary to transfer parental
custody or part thereof, was lacking. It stated that there were no
reasons to deprive the mother of parental custody. The appeal against
this to the Higher Regional Court (Oberlandesgericht) was unsuccessful.
In response to the constitutional complaint, the First Senate of the
Federal Constitutional Court has now decided that §§ 1626a.1 no. 1 and
1672.1 BGB are incompatible with Article 6.2 GG. The order of the Family
Court is reversed and the case is referred back for a new decision.
Until revised legislation enters into force, the Federal Constitutional
Court has provisionally ordered, supplementing §§ 1626a.1 no. 1 and
1672.1 BGB, that the Family Court, on the application of a parent, is to
transfer parental custody or part thereof to the parents jointly,
provided it is to be expected that this complies with the best interests
of the child; on the application of a parent, parental custody or part
thereof is to be transferred to the father alone where joint parental
custody is out of the question and it is to be expected that this best
complies with the best interests of the child.
In essence, the decision is based on the following considerations:
It is constitutionally unobjectionable that the legislature initially
transfers parental custody of a child born out of wedlock to its mother
alone. It is also compatible with the constitution that the father of a
child born out of wedlock is not granted joint parental custody together
with the mother at the same time as his paternity is effectively
recognised. Such an arrangement would certainly be compatible with the
constitution if it were combined with the possibility of obtaining
judicial review as to whether joint parental custody in accordance with
statute actually satisfies the best interests of the child in the
individual case.
But by generally excluding the father of a child born out of wedlock
from parental custody for his child if the child’s mother refuses her
consent to joint parental custody with the father, or to sole parental
custody of the father, without granting him the possibility of judicial
review by the standard of the best interests of the child, the
legislature disproportionately encroaches upon the father’s parental
rights.
The provision of § 1626.1 no. 1 BGB, which provides that sharing joint
parental custody is subject to the mother’s consent, constitutes a
far-reaching encroachment upon the father’s parental rights under
Article 6.2 GG if there is no possibility of judicial review. The
legislature disproportionately generally subordinates the father’s
parental rights to those of the mother although this is not necessary in
order to protect the child’s best interests.
For the assumption of the legislature on which the current law is based
has proved to be incorrect. The assumption that parents generally make
use of the possibility of joint parental custody, and that mothers’
refusal of consent is as a rule based on a conflict between the parents
which has detrimental effects for the child and is based on reasons
which do not serve the mother’s own interests but preserve the interests
of the child, is not confirmed by new empirical findings. On the
contrary, only slightly more than half of the parents of children born
out of wedlock agree to make declarations of joint parental custody. In
addition, on the basis of surveys of institutions and experts carried
out, it may be assumed that a considerable number of mothers refuse
consent to joint parental custody merely because they do not want to
share their traditional parental custody with the child’s father.
The provision of § 1672.1 BGB which makes the transfer of sole parental
custody of a child born out of wedlock subject to the mother’s consent
is also a serious and unjustified encroachment upon the father’s
parental rights under Article 6.2 GG. However, it must be taken into
account that, conversely, enabling a court transfer of sole parental
custody to the father is a serious encroachment on the parental rights
of the mother if in the individual case the father’s application is
granted. For the parental custody previously exercised by the mother is
completely removed from her, and not because she has failed in her duty
of upbringing and therefore the best interests of the child are
endangered, but because the father, in competition with her, claims his
right to have parental custody of the child in her place. In addition,
as a rule a change of parental custody entails the child moving from the
mother’s household to the father’s household, which affects, in
particular, the child’s need for stability and continuity. Taking this
into account and weighing the constitutionally protected interests of
both parents against each other, it is admittedly not compatible with
Article 6.2 GG to refuse the father sole parental custody for lack of
the possibility of judicial review of the individual case. However,
transferring sole parental custody from the mother to the father of the
child born out of wedlock is justified only if there is no other
possibility of safeguarding the father’s parental rights which
encroaches less seriously upon the mother’s parental rights, and if
there are important reasons of the best interests of the child which
suggest removing parental custody from the mother. It must therefore
first be examined whether joint parental custody of both parents may be
considered as a less drastic arrangement. Where this is the case, there
must be no transfer of sole custody. Failing this, sole custody must be
transferred to the father if it is to be expected that this corresponds
best to the child’s best interests.
This press release is also available in the original german version.
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