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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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