Judgment of 9 April 2024

R e a s o n s:

A.

1

The constitutional complaint concerns the constitutional status that Art. 6(2) first sentence of the Basic Law (Grundgesetz – GG) affords the (confirmed) biological, but not legal, father of a child. The constitutional complaint directly challenges an order of the Higher Regional Court (Oberlandesgericht) that rejected the complainant’s application for a judicial declaration that he is the legal father of his child by virtue of being the biological father. This also raises the question of whether the provisions of the Civil Code (Bürgerliches Gesetzbuch – BGB) that concern the biological father’s right to challenge the legal father’s paternity take sufficient account of the constitutional requirement to guarantee the biological father’s right of parental care.

I.

2

1. The universally binding status as parent of a child is conferred by way of the provisions regarding legal parenthood in the Civil Code ([...]). Legal parenthood is not always identical with biological parenthood. Under § 1591 of the Civil Code, the woman who has given birth to a child is the child’s legal mother. Pursuant to § 1592 of the Civil Code, a child’s legal father is either the man who was married to the child’s mother on the date of the child’s birth (no. 1), the man who has acknowledged paternity with the consent of the child’s mother (no. 2), or the man whose paternity is judicially established in accordance with Art. 1600d of the Civil Code or § 182(1) of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit – FamFG) (no. 3). Parental status is of major significance both for those parties within the child-parent relationship and those outside of it ([...]). For one thing, only legal parents may have parental custody (§§ 1626 ff. of the Civil Code). The child’s nationality and surname are likewise determined based on that of the legal parents.

3

A child’s biological parents are traditionally understood to be the man and woman whose joining of sperm and egg through sexual intercourse led to the conception and birth of a child by the woman ([...]). The ordinary (non-constitutional) law provisions regarding paternity challenges are based on such understanding. In particular, this follows from § 1600(1) no. 2 and § 1600(2) last half-sentence of the Civil Code, with the latter provision stipulating that being the biological father is a prerequisite for challenging paternity.

4

§ 1600(1) of the Civil Code stipulates that legal paternity may be contested by the legal father himself (no. 1), by the man who declares in lieu of an oath that he had sexual intercourse with the mother of the child during the conception period (no. 2), the mother (no. 3) and the child (no. 4). The right to contest paternity based on § 1600(1) no. 2 of the Civil Code was introduced in 2004 to implement the Federal Constitutional Court’s Order of 9 April 2003 - 1 BvR 1493/96 and others - (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 108, 82). Here, the Federal Constitutional Court had clarified that Art. 6(2) of the Basic Law protects the interest of the man who is the biological, but not legal, father to also become the legal father, thereby generally granting the biological father constitutional access to the right of parental care (cf. BVerfGE 108, 82 <104>).

5

The applicable version of § 1600 of the Civil Code reads, in the parts relevant to these proceedings, as follows:

(1) The following persons are entitled to contest paternity:

1. the man who has paternity pursuant to § 1592 nos. 1 and 2 and § 1593,

2. the man who declares in lieu of an oath that he had sexual intercourse with the mother of the child during the period of conception,

3. the mother and

4. the child.

(2) The contestation under subsection 1 no. 2 requires that there be no social and family relationship between the child and the child’s father within the meaning of subsection 1 no. 1, nor was there a social and family relationship at the time of the latter’s death, and that the person contesting is the biological father of the child.

(3) A social and family relationship under subsection 2 exists if the father within the meaning of subsection 1 no. 1 has or had actual responsibility for the child at the relevant point in time. There is as a rule an assumption of actual responsibility if the father within the meaning of subsection 1 no. 1 is married to the child’s mother or has shared a home with the child for a long period.

(4) …

6

The provisions on the time limits to bring a paternity challenge under § 1600b of the Civil Code read, in the parts that are of significance here, as follows:

(1) Paternity may be contested at court within two years. This period begins on the day the person entitled to contest paternity learns of the facts that call the paternity into question; the existence of a social and family relationship within the meaning of § 1600(2) first alternative does not prevent the period from running.

(1a) (repealed)

(2) The period does not commence before the birth of the child, nor before the acknowledgement has become effective. In the cases governed by § 1593 fourth sentence the period does not begin before the decision finding that the new husband of the mother is not the father of the child has become final and binding.

(3) If the legal representative of a minor child did not timely contest paternity, the child may contest it themselves after attaining the age of majority. In this case, the period does not begin before the child attains the age of majority and not before the date on which the child learns of the facts that call the paternity into question.

(4) …

(5) …

(6) If the child obtains knowledge of circumstances on the basis of which the consequences of the paternity are unreasonable for the child, the period in subsection 1 first sentence commences anew for the child on this date.

7

2. Pursuant to § 1600(2) in conjunction with § 1600(3) first sentence of the Civil Code, the man who is the biological, but not the legal, father is excluded from challenging paternity if, at the relevant point in time, there is a social and family relationship between the child and the child’s legal father (§ 1600(2) first alternative of the Civil Code) or if such relationship existed at the time of the legal father’s death (§ 1600(2) second alternative of the Civil Code). In statutory terms, the social and family relationship, as defined by § 1685(2) first sentence of the Civil Code, refers to the relationship between the child and a person with whom the child has a close tie and who has or used to have actual responsibility for the child. § 1600(3) second sentence of the Civil Code specifies the actual assumption of responsibility - and not the existence of a social and family relationship as such – by reference to two rebuttable presumptions, namely, that the legal father is married to the mother or that he has shared a home with the child for a long time. If the biological father is unsuccessful in contesting the legal father’s paternity because the latter has a social and family relationship with the child, the biological father is generally precluded from renewing a paternity challenge, for instance, once there no longer is a social and family relationship between legal father and child. Irrespective of the potential res iudicata effect of the decision in the first paternity challenge proceedings ([...]), which might preclude a renewed challenge, such challenges are typically precluded in any event by the time limit specified in § 1600b(1) of the Civil Code. This two-year time limit starts running from the moment the biological father learns of the facts that call the legal father’s paternity into question; an existing social and family relationship between legal father and child does not toll the time limit (§ 1600b(1) second sentence of the Civil Code). Once the first paternity challenge proceedings have been concluded, it is thus hardly possible for the biological father to initiate new proceedings within the applicable two-year time limit.

8

To the extent that the general presumptions for the actual assumption of responsibility (§ 1600(3) second sentence of the Civil Code) do not apply, the ordinary courts must examine whether, in the individual case, the legal father has assumed actual responsibility in a manner intended to last (§ 1685(2) first sentence of the Civil Code in conjunction with § 1600(3) of the Civil Code) and, based thereon, whether there is a social and family relationship between legal father and child at the relevant point in time. In terms of substantive requirements, the relevant factors are primarily of a qualitative nature, in particular, the personal contact and the extent to which the legal father is included in significant decisions concerning the child. What is decisive is the assumption of typical parental authority, that actual acts of care have been performed and that responsibility has been assumed in a manner intended to last ([...]). The applicable requirements are not met when responsibility is not actually being exercised, when the exercise is only a pretence or responsibility is only being assumed temporarily. The findings of the ordinary courts must take into account potential manipulations as to the actual prerequisites for the existence of a social and family relationship ([...]). It is considered possible for both the legal and the biological father to have a social and family relationship with the child that meets these criteria ([...]). However, in such a constellation, the social and family relationship between child and legal father still precludes the biological father from lodging paternity challenge proceedings, according to the case-law of the Federal Court of Justice. The legal father’s paternity takes precedence ([...]). Pursuant to the established case-law by the Federal Court of Justice, when it comes to assessing whether a social and family relationship exists, the relevant point in time within the meaning of § 1600(3) first sentence of the Civil Code always refers to the moment of the end of the proceedings before the highest court deciding on points of fact. Neither traditional methods of interpretation nor an interpretation in conformity with the Constitution allow for a presumption that a different point in time is referred to ([...]).

II.

9

The complainant is the biological father of a child born outside of wedlock on (...) 2020. From early April 2019 until shortly after the child’s birth, the complainant was in a relationship with the child’s mother and lived with her in a single household. After the child’s mother and the complainant ended their relationship in mid-2020, the complainant, at first, continued to have contact with his child for a few hours each day. The mother then entered into a relationship with a new partner. On 10 June 2020, the complainant acknowledged paternity before the registry office. The mother did not consent to the acknowledgment of paternity. On 9 July 2020, the complainant filed an application with the family court, seeking a declaration of his paternity. Subsequently, the mother informed the complainant that she would no longer grant him contact with the child. On 6 August 2020, the mother’s new partner (hereinafter: the legal father) acknowledged paternity of the child with the mother’s consent. In September 2020, the complainant applied for a judicial decision seeking access to his son based on § 1686a of the Civil Code. An agreement was made to this effect, allowing him to have weekly contact with his son. On 14 October 2020 – at a hearing in the initiated paternity challenge proceedings –, the complainant made a request to contest the legal father’s paternity and for a declaration that the complainant himself has legal paternity of the child. The parentage report conducted in the proceedings found that the likelihood of the complainant being the biological father is the highest possible (99.9999%).

10

By order of 19 May 2021, the family court rendered its decision in the paternity challenge proceedings and held that the complainant – and not the mother’s new partner – was the child’s legal father. The family court based its decision on the parentage report and the lack of a social and family relationship between legal father and child. The family court held that, in light of the child’s age at the time of the paternity challenge, which was initiated shortly after the birth of the child, a social and family relationship could only be presumed to be stable if such relationship had existed for at least one year since the child’s birth.

11

Upon a complaint lodged by the mother and the legal father, the Higher Regional Court, by challenged order of 28 July 2021 and with reference to the case-law of the Federal Court of Justice (para. 8), amended the order of the family court in such a way as to reject as unfounded the complainant’s application for a declaration that he – and not the legal father – was the child’s father. The Higher Regional Court held the paternity challenge was unsuccessful because a social and family relationship between legal father and child had been established in the meantime. According to the Higher Regional Court, the Federal Court of Justice had established that the end of the proceedings before the highest court deciding on points of fact marked the relevant point in time for determining whether a social and family relationship existed. While the Higher Regional Court did not fail to recognise that, as a result, the complainant had no possibility of becoming the legal father, it held that this was the necessary consequence of the statutory provisions in place.

III.

12

1. In his constitutional complaint, the complainant expressly claims that the order of the Higher Regional Court violates his parental right guaranteed by Art. 6(2) first sentence of the Basic Law. He contends that § 1600(2) and (3) of the Civil Code – as applied by the Higher Regional Court – make it impossible for him to become the child’s legal father. The complainant claims that it is not proportionate to give social paternity precedence if the biological father did everything in his power to become the child’s legal father at a time when legal paternity of the child had not yet been determined. The complainant submits that by – without exception – determining the existence of a social and family relationship at the time of the end of the proceedings before the highest court deciding on points of fact, the statutory law on paternity challenges proves to be ineffective, as it gives precedence to another man acknowledging paternity, even if he does so after the biological father has already filed an application for judicial declaration of paternity. The complainant contends that despite being the biological father he is afforded no possibility whatsoever of becoming the legal father, even in the event that the relationship between the mother and the legal father should come to an end at a later point in time. In essence, the constitutional complaint thus also challenges the statutory provisions on paternity challenges under § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code. The complainant further asserts that his child’s right of personality has been violated. [...]

13

2. The opportunity to submit a statement in the constitutional complaint proceedings was made use of – for the most part by answering a questionnaire sent out by the Senate – by the Professional Association of German Psychologists (Berufsverband Deutscher Psychologinnen und Psychologen e.V.), the Professional Association of Child and Adolescent Psychotherapists (Bundesverband für Kinder- und Jugendlichenpsychotherapie e.V.), the Federal Working Group of Regional Youth Welfare Offices (Bundesarbeitsgemeinschaft Landesjugendämter), the Federal Bar Association (Bundesrechtsanwaltskammer), the German Bar Association (Deutscher Anwaltsverein e.V.), the German Conference of Family Courts (Deutscher Familiengerichtstag e.V.), the German Psychology Society (Deutsche Gesellschaft für Psychologie e.V.), the German Institute for Youth Welfare and Family Law (Deutsches Institut für Jugendhilfe und Familienrecht e.V.), the German Youth Institute (Deutsches Jugendinstitut e.V.), the German Women Lawyers’ Association (Deutscher Juristinnenbund e.V.), the Association of Analytic Child and Adolescent Psychologists in Germany (Vereinigung Analytischer Kinder- und Jugendlichen-Psychotherapeuten in Deutschland e.V.) and the Academic Society for Family Law (Wissenschaftliche Vereinigung für Familienrecht e.V.).

14-25

[...] 

IV.

26

At the oral hearing on 26 September 2023, oral arguments were made by the complainant, the affected child’s legal parents and the Federal Government. The Federal Court of Justice, the Professional Association of Child and Adolescent Psychotherapists, the Professional Association of German Psychologists, the Federal Working Group of Regional Youth Welfare Offices, the Federal Bar Association, the German Bar Association, the German Conference of Family Courts, the German Psychology Society, the German Institute for Youth Welfare and Family Law, the German Youth Institute, the German Women Lawyers’ Association, the Association of Analytic Child and Adolescent Psychologists in Germany and the Academic Society for Family Law were heard as expert third parties in accordance with § 27a of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG).

B.

27

The constitutional complaint is inadmissible to the extent that the complainant asserts that his child’s fundamental rights have been violated (see (I) below). By contrast, the constitutional complaint is admissible to the extent that the complainant challenges a violation of his right of parental care under Art. 6(2) first sentence of the Basic Law (see (II) below).

I.

28

The complainant cannot admissibly assert, by way of constitutional complaint, that his child’s general right of personality (Art. 2(1) in conjunction with Art. 1(1) of the Basic Law) has been violated. Given that the mother has sole custody of the child, which includes legal representation as the child lacks legal ability, the complainant lacks the authority to represent his child in constitutional court proceedings (cf. BVerfGE 72, 122 <133>; 162, 378 <400 para. 48>). Only as an exception may third parties, in their own name, assert the child’s rights by exercising vicarious standing (cf. BVerfGE 72, 122 <136>). The prerequisites for such exception to apply are not met here. [...] This part of the constitutional complaint must thus be dismissed.

II.

29

By contrast, the constitutional complaint is admissible to the extent that the complainant alleges a violation of his fundamental right of parental care under Art. 6(2) first sentence of the Basic Law caused by the challenged decision of the Higher Regional Court and the statutory provisions (§ 1600(2) first alternative and § 1600(3) first sentence of the Civil Code) applied by the Higher Regional Court. In particular, the manner in which the constitutional complaint, with reference to the case-law by the Federal Constitutional Court, substantiates the possibility of the complainant’s fundamental right of parental care being violated due to him being precluded from becoming the legal father, meets the requirements under § 23(1) second sentence and § 92 of the Federal Constitutional Court Act (see BVerfGE 149, 346 <359 para. 23> with further references; 158, 210 <230 f. para. 51>).

C.

30

To the extent that the constitutional complaint is admissible, it is also well-founded. § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code are incompatible with Art. 6(2) first sentence of the Basic Law (see (I) below). Given that the challenged order of the Higher Regional Court is based on the application of § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code, the order violates the complainant’s right of parental care under Art. 6(2) first sentence of the Basic Law (see (II) below).

I.

31

The provisions under § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code violate biological fathers’ right of parental care under Art. 6(2) first sentence of the Basic Law to the extent that biological fathers, as parties entitled under § 1600(1) no. 2 of the Civil Code to contest the paternity of the legal father, are barred from doing so if there is a social and family relationship between the legal father and the child at the relevant point in time. Art. 6(2) first sentence of the Basic Law protects the right of parents to care for and raise their children – a right that the state is obliged to respect as such. This fundamental right is afforded to biological fathers regardless of whether they are legal fathers too (see (1) below). § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code do not sufficiently take the requirements of biological fathers’ fundamental right of parental care into account and interfere with this right (see (2 a) below) in a manner that is not constitutionally justified (see (2 b) below).

32

1. The right guaranteed to parents under Art. 6(2) first sentence of the Basic Law to care for and raise their children must be given effect in the statutory law by the legislator, thereby respecting the structural elements that define the constitutional right of parental care (see (a) below). The biological fathers of children are parents within the meaning of this fundamental right and are thus holders of this right (see (b) below). They must be given the possibility to have legal paternity. Whether and to which degree biological fathers are granted parental responsibility in the specific case must be determined by the legislator in fulfilling its duty to design the statutory framework, thereby considering the structural elements that determine the constitutional right of parental care and the proportionality principle (see (c) below). Art. 6(2) first sentence of the Basic Law cannot be interpreted as affording further-reaching rights to biological parents, even when considering the protection of private and family life under Art. 8(1) of the European Convention on Human Rights (see (d) below).

33

1. a) Art. 6(2) first sentence of the Basic Law does not purport to establish which persons may assert the fundamental right of parental care and assume parental responsibility or the possibilities that must be granted to parents to enable them to fulfil their responsibilities. For parents to be able to exercise these responsibilities, the legislator must specify the right of parental care by way of ordinary legislation (cf. BVerfGE 121, 69 <94>; see also BVerfGE 84, 168 <180> as well as — referring to custody rights — BVerfGE 162, 378 <408 f. para. 68, 70> with further references). The state’s duty to design the statutory framework both refers to provisions regulating the relationship between parents and children as well as provisions on their relationship with third parties. The legislator must further determine which persons from the familial circle within the meaning of Art. 6(2) first sentence of the Basic Law have parental responsibility, the exercise of which is guided by the state pursuant to Art. 6(2) second sentence of the Basic Law (cf. BVerfGE 108, 82 <100>; 133, 59 <81 para. 58>; see also BVerfGE 127, 132 <146>).

34

In fulfilling the duty to design the statutory framework, the legislator must respect the structural elements that define the fundamental right of parental care within the meaning of Art. 6(2) first sentence of the Basic Law (cf. Federal Constitutional Court, Order of the First Senate of 1 February 2023 - 1 BvL 7/18 -, paras. 113 ff. – on a corresponding design of marriage within the meaning of Art. 6(1) of the Basic Law in the context of child marriages). Given that the fundamental right of parental care is a parent’s natural right within the meaning of Art. 6(2) first sentence of the Basic Law, this right does not depend on any conferral by the state; rather, it is recognised by the state as a predetermined right (cf. BVerfGE 59, 360 <376>; 108, 82 <100>). This not only limits the way in which the state may restrict the fundamental right of parental care in individual cases, it also precludes ‘changing the essence’ ([...]) of the fundamental right. For instance, the legislator is precluded from revoking the care and raising of children as an individual task and responsibility of the parents, outside of individual cases of parental failure to undertake such responsibility (cf. Art. 6(3) of the Basic Law), and placing such responsibility in the hands of the state (BVerfGE 24, 119 <142>). In order to enforce the right to care for and raise children, which primarily is the responsibility of the parents, the legislator must provide for a legal framework in the ordinary law that enables parents to fulfil that responsibility ([...]). This primarily pertains to provisions regulating the essential elements of custody (cf. BVerfGE 84, 168 <180>; 162, 378 <408 para. 68> with further references). A further defining structural element of the right of parental care under Art. 6(2) first sentence of the Basic Law is the link that exists in principle between the fundamental right of parental care and parental responsibility (cf. BVerfGE 61, 358 <372>; 108, 82 <102>). This applies regardless of whether the legal status as a parent within the meaning of Art. 6(2) first sentence of the Basic Law is based on biological origin (para. 3) or was assigned by operation of the ordinary law (cf. BVerfGE 79, 203 <210>; 80, 286 <295>; 108, 82 <102>; see also BVerfGE 133, 59 <81 para. 59>). However, the structural link between holding the fundamental right under Art. 6(2) first sentence of the Basic Law and the duty of parental responsibility does not mean that the legislator must grant parental responsibility under ordinary law to all those who are mothers and fathers in the constitutional sense – or, if it chooses to do so, to grant parental responsibility to the same degree (cf. BVerfGE 92, 158 <179>; 107, 150 <169>; 127, 132 <146 f.>).

35

In designing the statutory framework, the legislator must take further guarantees of the Basic Law into account. In particular, these guarantees flow from the child’s fundamental right to have parental care and upbringing guaranteed by the state, to wit: the state’s obligation under Art. 2(1) in conjunction with Art. 6(2) first sentence of the Basic Law to guarantee that children can be cared for and brought up by their parents in line with the child’s best interests ([...]). This applies both to how parental status is assigned and to the specification of the essential parts of parental authority. In addition to these guarantees, the mother of the child, as well as other persons who are particularly close to the child, but not parents, may have interests that must be respected under constitutional law and that in particular arise from the right to family life (Art. 6(1) of the Basic Law) and the right to the free development of one’s personality (Art. 2(1) of the Basic Law). Lastly, the general guarantee of the right to equality under Art. 3(1) of the Basic Law as well as its specification in Art. 6(5) of the Basic Law affording protection to children born out of wedlock may be of importance when allocating and designing parental rights (cf. BVerfGE 107, 150 <183>; 135, 48 <88 para. 108>).

36

b) aa) The constitutional right of parental care guarantees that those who hold this right, by virtue of being parents within the meaning of Art. 6(2) first sentence of the Basic Law, have the right to care for and raise their children. Parents may generally decide for themselves, i.e. free from state influence and interference, how to care for and raise their children, and how to thereby do justice to their parental responsibility (cf. BVerfGE 121, 69 <92>; 162, 378 <407 para. 67>). In principle, the constitutional right of parental care is comprehensive in nature. Persons who have parental responsibility within the meaning of Art. 6(2) first sentence of the Basic Law are, in principle, constitutionally entitled to influence all matters relating to the life and development of their child, including matters outside family life. As a starting point, the constitutional right of parental care also protects all essential elements of custody that are indispensable for the exercise of parental responsibility (cf. BVerfGE 107, 150 <173>; 162, 378 <408 para. 68>). The fundamental right of parental care includes a general entitlement to be afforded legal paternity as regulated under ordinary law (cf. BVerfGE 108, 82 <104>; 133, 59 <77 para. 47>; see also Federal Constitutional Court, Order of the Second Chamber of the First Senate of 25 September 2018 - 1 BvR 2814/17 -, para. 18). Likewise, this fundamental right guarantees parents the permanence of their parenthood, even if this is not based on biological origin but was instead determined by operation of the ordinary law (cf. BVerfGE 135, 48 <83 para. 91 f.>; see already BVerfGE 108, 82 <107>).

37

bb) Art. 6(2) first sentence of the Basic Law itself only partially defines who is a parent within the meaning of this fundamental right and thus who is afforded its protection. The way the legislator specifies the fundamentally guaranteed right of parental care determines not only those who hold this fundamental right (see paras. 39 ff.) but also those persons who are parents within the meaning of Art. 6(2) first sentence of the Basic Law. The legislator may determine who is a parent through ordinary legislation both at the status level of legal parenthood and at the level of parental responsibility (cf. BVerfGE 108, 82 <103>; 133, 59 <81 para. 58>). Examples of such ordinary law specifications include provisions on the adoption of minors (§§ 1741 ff. of the Civil Code) or those assigning legal paternity to the man who acknowledges paternity with the mother’s consent (§ 1592 no. 2 and § 1595(1) of the Civil Code). The man need not be the biological father for this acknowledgment to have legal effect ([...]). The assignment of parental status is not contingent on the conferral of all elements of parental responsibility, namely all custody rights and obligations, that are defined by ordinary law ([...]). When enacting ordinary legislation to specify who is a parent in the constitutional sense, the legislator is bound by the structural elements that define the right of parental care under Art. 6(2) first sentence of the Basic Law.

38

Regardless of how ordinary law assigns parental status, parents within the meaning of the Basic Law certainly include the child’s biological parents in the traditional sense, i.e. the man and woman whose joining of sperm and egg through sexual intercourse led to conception and the subsequent birth of a child by the woman (para. 3; cf. BVerfGE 24, 119 <150>; 133, 59 <78 f. para. 53>). The parents’ marital status and their specific social relationship to the child are not decisive (cf. in this respect BVerfGE 92, 158 <177 f.>; 108, 82 <100>). This understanding is based on the idea that those individuals who ‘have given life’ to the child are naturally ready and required to assume the responsibility of caring for and raising the child – a responsibility that is necessarily linked to the fundamental right of parental care (cf. BVerfGE 24, 119 <150>; 108, 82 <100>). A child’s biological father within the aforementioned meaning thus enjoys protection under Art. 6(2) first sentence of the Basic Law; no further prerequisites apply in this respect.

39

cc) In principle, every parent in the constitutional sense may invoke the fundamental right of parental care under Art. 6(2) first sentence of the Basic Law ([...]). The fundamental right of parental care is not held by the community formed by the child’s parents but by every parent individually (cf. BVerfGE 99, 145 <164>; 133, 59 <78 para. 51> with further references) and thus also by the child’s biological father (see paras. 3 and 38 above).

40

(1) The fundamental right of parental care is defined by the parents’ assumption of responsibility for their child. Parents are thus not only conferred rights in terms of their relationship and contact with the child, including custody rights (cf. §§ 1626 ff. of the Civil Code), but are also conferred the duty to care for and raise the child. This duty not only encompasses the responsibility to ensure the child’s physical, psychological and economic well-being, but also to ensure that the child, in exercising their own right to the free development of their personality following from Art. 2(1) of the Basic Law, can develop into a self-reliant person within society (cf. BVerfGE 133, 59 <73 f.>; 159, 355 <381 para. 45>; 162, 378 <409 para. 70>). It follows from the critical importance of the child’s best interests in the relationship between child and parents (cf. BVerfGE 121, 69 <92>; 133, 59 <77 f. para. 49>; 162, 378 <408 para. 67>; established case-law) and the role of the state as guarantor in this respect (Art. 6(2) second sentence of the Basic Law) that the guarantees that the right of parental care affords to those who are parents within the meaning of Art. 6(2) first sentence of the Basic Law are generally linked to the assumption of parental responsibility (cf. in this respect BVerfGE 108, 82 <101 f.>; see also BVerfGE 133, 59 <78 para. 52>). The obligation to care for and raise the child, which is primarily incumbent on the parents, is an essential element of the fundamental right of parental care - regardless of whether the parental status in the constitutional sense is based on parentage or has been assigned by operation of the ordinary law (cf. BVerfGE 108, 82 <102> with further references).

41

(2) Given that the fundamental right of parental care is linked to having parental responsibility, parents within the meaning of Art. 6(2) first sentence of the Basic Law must, in principle, have the possibility to obtain and exercise such responsibility. Guaranteeing such possibility is part of the legislator’s duty in designing the statutory framework. The legislator must respect the structural elements that define the fundamental right of parental care. This does not necessarily mean that the number of parents who may have parental responsibility for a child and thus be holders of the fundamental right of parental care under Art. 6(2) first sentence of the Basic Law is limited from the very outset to two (still different BVerfGE 108, 82 <102 ff.>; 133, 59 <78 para. 52>).

42

The biological father’s parenthood in the constitutional sense follows from his genetic kinship to the child due to his sexual intercourse with the child’s mother leading to natural conception (paras. 3 and 38). Certainly, biological fathers, whose readiness to assume parental responsibility may be presumed (cf. in this respect BVerfGE 108, 82 <100>), are, as a starting point, holders of the fundamental right of parental care and can rely on the guarantees under Art. 6(2) first sentence of the Basic Law. This also applies if, by virtue of parental status assigned under ordinary law, the mother and the legal father are also holders of the fundamental right of parental care. When there are more than two holders of the fundamental right of parental care, the legislator’s duty to design the statutory framework requires the legislator to guarantee that it is possible to assume parental responsibility within the meaning of Art. 6(2) first sentence of the Basic Law. When designing the legal parenthood of the three holders of the fundamental right of parental care – i.e. the mother, biological father and legal father –, the legislator is not precluded under constitutional law from affording legal parenthood to all three of them; however, it is also not constitutionally required to do so.

43

The structural elements defining the fundamental right of parental care, particularly its focus on serving the child’s best interest, generally do not preclude that parental responsibility for the child be conferred to the mother and both the biological father and the legal father (see however BVerfGE 108, 82 <102 f.>). On the one hand, the focus of Art. 6(2) first sentence of the Basic Law on the child’s best interests does require that the number of parents be strictly limited (cf. BVerfGE 108, 82 <103>). One reason for this is that increasing the number of parents may be presumed to increase conflicts between the parents regarding the division of roles and competences, which runs counter to the child’s best interests ([...]). Another reason is that assigning parental responsibility to more than two persons may make it more difficult to attribute failures – in terms of the obligation to care for and raise the child – to individual parents, thus affecting the state’s ability to act as guarantor of the child’s best interests in relation to the individual parents – a role vested in the state for the child’s benefit under Art. 6(2) second sentence of the Basic Law (cf. BVerfGE 108, 82 <103>). These reasons, however, do not require, in the case of two legal parents who hold the fundamental right under Art. 6(2) first sentence of the Basic Law, that the biological father (para. 41) be precluded from holding this right from the outset. Conflicts or difficulties concerning the division of competences in the context of the exercise of the state’s duty of supervision when there are more than two parents are not caused by the fact of holding the fundamental right of parental care nor the number of legal parents as such. Rather, such conflicts and difficulties would arise if more than two parents had full parental responsibility, i.e. if each was conferred all rights and duties defining parental responsibility under ordinary law, in particular custody rights and duties, and there was no agreement on how to exercise this responsibility ([...]). Yet, in fulfilling its duty to design the statutory framework, the legislator is not required to grant all parents the same rights in relation to their child irrespective of the specific constellation at hand (cf. BVerfGE 107, 150 <169>). Rather, the legislator may design the parents’ respective legal status in a differentiated manner (cf. BVerfGE 92, 158 <179>).

44

c) When designing rules relating to parental responsibility, which is linked to the fundamental right of parental care under Art. 6(2) first sentence of the Basic Law, the legislator has leeway both with respect to assigning parental status (see aa) below) and in terms of specifying the parents’ rights and duties in relation to their child (see bb) below) ([...]); the legislator’s leeway here is limited by the structural elements that define the fundamental right of parental care and by the requirements under the proportionality principle.

45

aa) (1) If the legislator decides to limit legal parenthood to only two persons – as is currently the case –, the legislator is, in principle, obliged to base parenthood on the child’s biological parents (paras. 3 and 38; cf. BVerfGE 108, 82 <100>). However, the provisions on establishing legal paternity need not require a determination of biological parentage in the individual case. Rather, such provisions may also operate by way of typification: parentage, and thus the readiness to assume parental responsibility in a legally binding manner, may also be inferred from the actual circumstances, especially the social situation of the individuals concerned. Parental status may be assigned based on such typification if this generally leads to the biological parents also being classified as the legal parents (cf. BVerfGE 79, 256 <267>; 108, 82 <100 f.>). This is in line with both the focus on the child’s best interest from Art. 6(2) first sentence of the Basic Law and the protection afforded to the family and social relationships within the meaning of Art. 6(1) of the Basic Law. The legislator is thus generally authorised to presume that the mother’s husband is the biological father if the child was born in wedlock (cf. § 1592 no. 1 of the Civil Code) and to assign legal paternity based on this presumption. The same applies if a man has acknowledged paternity with the mother’s consent (cf. § 1592 no. 2 and § 1595(1) of the Civil Code), thus expressing his readiness to assume parental responsibility (cf. BVerfGE 108, 82 <100>). In such a case, it can be expected that raising and caring for the child is a matter close to this man’s heart in the same way generally required of the biological and legal parents under the Basic Law (cf. in this respect BVerfGE 133, 59 <77 f. para. 49> with further references). Assigning legal paternity based on such presumptions necessarily entails that there may be individual cases in which the legal father is not the biological father, contrary to the legislator’s presumption. In such a case, the child has two fathers, both of whom may assert their parenthood as protected by Art. 6(2) first sentence of the Basic Law (cf. BVerfGE 108, 82 <100 f.>). Given that the biological father may not be the legal father if the legislator assigns parental status based on the above presumptions, the guarantees under the fundamental right of parental care, however, oblige the legislator to allow for the biological father to obtain legal paternity as well as to enable a legal father to relinquish such status.

46

(2) If the ordinary law limits legal parenthood to two parents, this interferes with the biological father’s fundamental right of parental care (Art. 6(2) first sentence of the Basic Law) when a man other than the biological father is the child’s legal father.

47

(a) The fundamental right of parental care under Art. 6(2) first sentence of the Basic Law guarantees the possibility for the biological father (para. 3) to also become the legal father of his child. If the ordinary law excludes legal paternity for more than one father – which as a starting point is permissible ([...]) albeit not constitutionally required (para. 43) –, the biological father must have a procedure available to him by which he may, in principle, obtain legal paternity (cf. BVerfGE 108, 82 <104 f.>). This procedure must be sufficiently effective (cf. Federal Constitutional Court Order of the Second Chamber of the First Senate of 25 September 2018 - 2 BvR 2814/17 -, para. 19) in order to take account of the biological father’s fundamental right of parental care.

48

(b) While biological parentage must guide the assignment of legal paternity, Art. 6(2) first sentence of the Basic Law does not always require that biological paternity take precedence over legal paternity (cf. BVerfGE 108, 82 <105 f.>; see also Federal Constitutional Court, Order of the Second Chamber of the First Senate of 25 September 2018 - 1 BvR 2814/17 -, para. 20 with further references). However, if the biological father – a holder of the fundamental right of parental care – is denied legal paternity due to a different man already being the legal father, such denial must be justified by overriding, constitutionally protected interests of other persons concerned, in particular those of the child. In this sense too, the legislator may resort to abstract and general provisions, i.e. disregarding deviating circumstances in individual cases, when designing legal paternity and considering the different, and in part countervailing, interests.

49

(aa) In fulfilling its duty to design the statutory framework, the legislator must consider the discernible extent of the biological father’s interest in becoming the legal father, based on the objective circumstances. In this regard, efforts by the biological father to become the legal father are of significance, given that the fundamental right of parental care is defined by the focus on the child’s best interests as far as the parent-child relationship is concerned and by the link between constitutional parenthood and paternal responsibility, in the sense that both comprise comprehensive rights and duties in relation to the child. Early and exhaustive efforts to assume legal paternity generally allow for the conclusion that the biological father, being one of the two parents who gave life to the child, is ready to assume the responsibility of caring for and raising the child (cf. in this respect BVerfGE 108, 82 <100>). Under the Basic Law, biological parenthood (paras. 3 and 38f.) is linked to the understanding that the child’s wellbeing is ‘more important’ to the biological parents ‘than to any other person’ (cf. BVerfGE 59, 360 <376>; 61, 358 <371>). If the biological father is ready to assume parental responsibility from the moment the child is born, this carries weight (cf. Federal Constitutional Court, Order of the Second Chamber of the First Senate of 25 September 2018 - 1 BvR 2814/17 -, paras. 19, 21). Generally in such cases, the guarantee that Art. 6(2) first sentence of the Basic Law establishes in favour of the biological father largely runs parallel to the child’s interest in having parental status assigned by law from the moment of the child’s birth (cf. BVerfGE 84, 168 <181>; see already BVerfGE 38, 241 <251>). The legislator must also consider whether and to what extent the biological father – despite not being the legal father – is or was involved in caring for and raising the child, be it living together with mother and child, either currently or in the past, or by his regular contact with the child. Both of these factors may – in addition to the biological father’s fundamental right of parental care – establish a relationship between biological father and child that is protected by Art. 6(1) of the Basic Law. But even if there is or used to be a social and family relationship between biological father and child, constitutional law does not necessarily require that the biological father be afforded legal paternity if the child and his current legal father share a social and family relationship that is worthy of protection (cf. Federal Constitutional Court, Order of the First Chamber of the First Senate of 4 December 2013 - 1 BvR 1154/10 -, para. 5; Order of the Second Chamber of the First Senate of 25 September 2018 - 1 BvR 2814/17 -, para. 20).

50

(bb) The legislator must design legal paternity in ordinary legislation in such a way that consideration is given to the biological father’s fundamental right of parental care and, in particular, the child’s constitutionally protected interests , in order to do justice to its responsibility as guarantor in relation to the child arising from Art. 2(1) in conjunction with Art. 6(2) first sentence of the Basic Law (cf. BVerfGE 133, 59 <75 f. para. 45>; on the protection of the child under Art. 6(1) of the Basic Law paras. 56 ff.). The legislator’s role as guarantor obliges it to ensure that the question of who exercises parental responsibility and how is guided by the child’s best interests. This includes generally making it possible and ensuring that the parents dedicate themselves to the children (cf. BVerfGE 101, 361 <385 f.>), as is required by the Basic Law (cf.; BVerfGE 57, 361 <382 f.>; 121, 69 <95>; 133, 59 <74 para. 42>). The right of parental care also includes the responsibility to ensure that the child, in the exercise of their own right to the free development of their personality, can develop within society (cf. BVerfGE 133, 59 <73 f. para. 42>; 159, 355 <381 para. 45>; 162, 378 <409 para. 70>). In addition to the parents’ duty to promote their child’s development, the state has its own obligations in relation to the child that support and supplement the parents’ mandate to care for and raise the child (cf. BVerfGE 83, 130 <139>). Pursuant to Art. 2(1) in conjunction with Art. 6(2) first sentence of the Basic Law, the state has a duty to guarantee fundamental rights, even in those areas in which the duty to care for and raise the child falls to the parents. As part of this duty to guarantee fundamental rights, the state has a responsibility to monitor and ensure that the child can actually develop into a self-reliant person while in the parents’ care (cf. BVerfGE 101, 361 <385 f.>; 121, 69 <93 f.>; 133, 59 <73 f. para. 42>). It is first and foremost for the legislator to decide how the state fulfils its duty to guarantee fundamental rights. In doing so, the legislator has a margin of appreciation and assessment as well as leeway to design that is subject to constitutional review (cf. BVerfGE 133, 59 <75 f. para. 45> with further references).

51

The state’s duty to guarantee fundamental rights also concerns the way in which parental status for the child is assigned by law. The child’s general right of personality (Art. 2(1) in conjunction with Art. 1(1) of the Basic Law), in its manifestation of the free development of one’s personality (cf. BVerfGE 159, 223 <278 para. 113>), requires that the parental role be clearly assigned (cf. BVerfGE 108, 82 <101>). Parentage and the quality of the relationship between a child and persons with whom they have a close tie are important factors for the child’s development. The same is true for the child’s knowledge and certainty of which family they belong to, who has parental responsibility for them and the confidence that this form of belonging will last. The family status assigned by law has a key effect on individual consciousness, understanding oneself and understanding one’s relationship to others. Assigning such status creates both personal and legal security for the child (cf. BVerfGE 108, 82 <101 f.>), especially if the statutory framework is designed to assign parental status for the child in a manner that is as lasting as possible. In this respect, biological parentage is relevant when assigning parental status, because a later change in parental status is generally ruled out if the biological father is also the legal father, whereas such certainty does not exist if the legal father is not the biological father, due to the possibility of paternity being successfully challenged ([…]). The results from the oral hearing show that there are indications from research on stepchild adoption that the involvement of biological fathers tends to be more long-term, irrespective of their relationship with the child’s mother. Lastly, it may also be in the child’s best interest if, for example, an existing parental constellation remains unaffected, but is supplemented by a lasting relationship between child and biological father that is additionally stabilised by his parental status. Consequently, the legislator is not obliged to use typification and limit legal parenthood to two parents without allowing for a differentiated decision in the specific case.

52

Additionally, the child’s general right of personality, which is guaranteed by fundamental rights, protects against available information on the child’s parentage being withheld from the child. Withholding such information can pose a specific threat to the free development of the child’s personality. Knowledge of one’s descent can be of great importance to the development of one’s personality, and if a person cannot determine their parentage, this can place a considerable burden on them and cause insecurities (cf. BVerfGE 141, 186 <201 para. 31, 202 f. para. 34 f.> with further references). However, the general right of personality does not afford an absolute guarantee to know one’s parentage; rather, the extent of this guarantee is balanced against the fundamental rights of other persons affected (cf. BVerfGE 141, 186 <204 f. para. 39, 208 ff. paras. 49 ff.>). Even if the child is given the possibility to determine their parentage outside of the legal parent-child relationship, which § 1598a(1) no. 3 of the Civil Code provides, the child’s entitlement to know their parentage is relevant to the design of legal parenthood to the extent that, if there are doubts as to child’s biological origin, the child may have an interest in the current legal father losing this status and the biological father becoming the legal father (cf. Chamber Decisions of the Federal Constitutional Court, Kammerentscheidungen des Bundesverfassungsgerichts – BVerfGK 14, 421 <428>). In such case, the child’s interest in knowing their parentage – protected by the general right of personality – coincides with the requirement to allow, as far as possible, for the biological father to also be the legal father (cf. BVerfGE 117, 202 <234>) – a requirement that follows from the right of parental care under Art. 6(2) first sentence of the Basic Law.

53

(cc) In fulfilling its duty to design the statutory framework, the legislator must also take regard of the legal father’s fundamentally protected interests. If the legislator chooses to limit legal parenthood to two persons, the fundamental right of parental care (Art. 6(2) first sentence of the Basic Law) protects the legal father’s potential interest in the continued existence of the parent-child relationship, even if there are doubts as to the child’s biological origin (cf. BVerfGK 14, 421 <427>). Conversely, because the fundamental right of parental care is linked to parental responsibility, it also protects the legal father’s potential interest in giving up his status as legal father should it become clear that he is not the child’s biological father (cf. BVerfGE 117, 202 <234>). This would then – at least under extant law on paternity challenges – promote the aim of having biological and legal paternity coincide (cf. BVerfGE 108, 82 <104>; 117, 202 <234>).

54

(dd) The fundamental right of parental care of the child’s mother is of relevance to the design of the biological father’s legal status if there is a social and family relationship between legal father and child that is protected by Art. 6(1) of the Basic Law. If there is no such relationship, the mother may have an interest in not sharing legal parenthood with the biological father. However, such interest is not protected by Art. 6(2) first sentence of the Basic Law (cf. BVerfGE 108, 82 <109>).

55

(ee) If the legislator limits legal parenthood to two parents, the statutory framework regulating legal parenthood must respect the protection of the family afforded by Art. 6(1) of the Basic Law (cf. BVerfGE 108, 82 <107>; see also BVerfGE 133, 59 <84 f. para. 67 f.>). This may encompass the child’s social and family relationships with the legal parents and with the biological, but not legal, father.

56

(α) Art. 6(1) of the Basic Law affords protection to the community of parents who are actually living with and bringing up children, irrespective of whether the parents are married to one another (cf. BVerfGE 151, 101 <124 f. para. 56>; 159, 223 <276 para. 108> with further references). The right to family life specifically serves to protect the psychological and social dimension of family ties, which is why legal kinship is not a prerequisite for this right (cf. BVerfGE 133, 59 <82 f. para. 61 ff.>). The right to family life refers to the actual nature of the ties existing between the persons concerned. In this respect, the protection of the family pursuant to Art. 6(1) of the Basic Law exceeds the parental right of Art. 6(2) first sentence of the Basic Law, given that the former also encompasses family communities in a broader sense – for instance, foster families (cf. BVerfGE 68, 176 <187>; 79, 51 <59>) and stepfamilies (cf. BVerfGE 18, 97 <105 f.>; 79, 256 <267>), which, as social families, exist independent of legal parenthood (cf. BVerfGE 99, 216 <231 f.>; 108, 82 <107, 116>; 133, 59 <82 f. para. 62 f.>; established case-law). Art. 6(1) of the Basic Law thus protects social families as lasting communities made up of parents and their children that are characterised by a sharing of responsibility (cf. BVerfGE 80, 81 <90>; 99, 216 <231 f.>). The family community is of particular significance when parents are living together with their growing children. The children are generally in need of protection, which is why the family – and specifically the fact that they are brought up by their parents – is essential for their physical and emotional development (cf. BVerfGE 80, 81 <90>).

57

(ß) Art. 6(1) of the Basic law protects both the social and family community between a child and their legal parents as well as the child’s community with their legal father separately. Indeed, it is the relationship between a child and each individual parent that is protected by Art. 6(1) of the Basic Law (cf. BVerfGE 78, 38 <49>; 108, 82 <114>). When legal parenthood is limited to two persons, a change in who has the status of legal father also affects the scope of protection afforded by the fundamental right to family life if there is a social and family relationship between child and current legal father. A change in legal paternity affects the social family as a lasting community of shared responsibility, even if such change does not result in alterations to the family’s living arrangements. This is because legal paternity is the prerequisite for having legally responsibility for the child by having custody for them under ordinary law (§§ 1626 ff. of the Civil Code). Consequently, a change in who has legal paternity also affects the family relationship between the mother and her child. Under extant ordinary law, if the biological father becomes the new legal father, he may obtain custody if the prerequisites set out in § 1626a of the Civil Code are met. This affects the current community of shared responsibility.

58

(γ) If a social and family relationship exists between the biological, but not legal, father with his child, which must be considered when he has had actual responsibility for the child for a certain period of time, such a relationship is also protected by Art. 6(1) of the Basic Law. In such case, the fundamental right to family life protects the interest of both child and father in maintaining the social and family relationship (cf. BVerfGE 108, 82 <112>). Should the biological father be seriously prepared to assume not only actual but also legal responsibility for the child, Art. 6(1) of the Basic Law reinforces his interest in obtaining the status of legal father – which is protected under Art. 6(2) first sentence of the Basic Law – as being the legal father is the prerequisite for him to assume legal responsibility for the child and obtain custody.

59

bb) Even if the legislator affords the biological father the possibility of obtaining legal parenthood alongside the mother and legal father – thereby deviating from extant ordinary law without being constitutionally required to do so (paras. 41 and 49) –, the legislator must, as a starting point, respect the aforementioned standards when designing the statutory framework on parental responsibility, which is intrinsically linked to the fundamental right of parental care (Art. 6(2) first sentence of the Basic Law). The legislator is then obliged to take account of the child’s constitutionally protected interests by ensuring clarity in terms of the legal parents’ rights and duties. The child’s sense of security is essential for their development; assigning parental status for the child by law does not suffice in this respect, rather it also requires certainty as to who has responsibility for the child and is a parent to them (cf. in this respect BVerfGE 108, 82 <101 f.>). Furthermore, if legal parenthood is extended to a mother and two parents, the respective rights and duties in relation to the child must be clearly and unambiguously assigned. This is also necessary to be able to determine the person in relation to whom the state must exercise its role as guarantor under Art. 6(2) second sentence of the Basic Law and against whom to impose measures under custody law if needed (cf. §§ 1666 ff. of the Civil Code; BVerfGE 108, 82 <103>). Constitutional law does not require that all holders of the fundamental right under Art. 6(2) first sentence of the Basic Law be afforded the same rights and duties in relation to their child (cf. BVerfGE 92, 158 <179>; 107, 150 <169>). Consequently, extant ordinary law does not assign parental responsibility in the form of custody to each legal parent (§§ 1626 ff. of the Civil Code). Rather, custody is contingent on further prerequisites, at least in the case of children born out of wedlock (see in particular § 1626a(1) no. 3 and § 1626a(2) of the Civil Code).

60

(1) The child’s constitutionally protected interests, particularly the child’s entitlement under Art. 2(1) of the Basic Law to be supported and promoted in the free development of their personality within society (cf. BVerfGE 133, 59 <73 f. para. 42>; 159, 355 <381 para. 45>; 162, 378 <409 para. 70>), do not constitutionally preclude conferring parental responsibility – which is defined by rights and duties – to the mother, the biological father and the legal father (para. 43). Neither the written statements by expert third parties that were provided in the proceedings nor the statements made during the oral hearing give any reason to presume that it would from the outset be incompatible with exercising parental responsibility in the child’s best interest if such responsibility, regardless of the specific form, were held by all three parents. This applies both to the findings on children’s attachment behaviour as well as the children’s knowledge and certainty as to who is responsible for them as a parent – an important factor for their development.

61

A child is capable of forming close bonds with several persons, according to the insights and assessments presented in particular by the German Psychology Society and the Professional Association of Child and Adolescent Psychotherapists, with their results being largely in line with those reached by other expert third parties. The key for building such bonds is that these persons care for the child and actually interact with them. An increased complexity in parental constellations does not, on its own, place a greater burden on the child. Adverse effects on the child-parent relationship have only been observed in case of significant conflicts, whether open or hidden, between the persons with whom the child has a close bond. This holds true not only for parental constellations involving more than two parents but also for core families with only two parents. The German Youth Institute confirms these findings. According to the institute’s supplemental statement, which is plausible, longitudinal studies on stepfamilies have not found any increase in conflicts in the case of several persons having custody. This is in line with the experience and findings available to the Federal Working Group of Land Youth Welfare Offices. According to the working group, if both biological parents have legal paternity and assume the role of social parenthood together with the mother’s partner, this does not give rise to general issues in terms of the child’s attachment behaviour. Such a family model, however, demands from all involved an increased readiness to communicate and cooperate and it requires acceptance of the importance and role of the other parents and persons with whom the child has a close bond.

62

The German Conference of Family Courts and the German Youth Institute have also drawn attention to a provision in Wales according to which custody can be conferred on more than two individuals. According to available judicial statistics, this has not entailed a discernible increase in the number of court proceedings. The German Youth Institute confirms this, also by reference to a similar legal situation in Canada, noting, however, that less extensive data are available in this respect.

63

The expert third parties ultimately agree that raising a child and promoting their development can be adversely affected if no parental status is assigned by law. While assigning parental status by law has no direct effect on the bonds that the child forms, parents who have legal parenthood are more willing to care for the child than those who have no formal legal status in relation to the child. This finding was presented by the Professional Association of German Psychologists, the Federal Working Group of Land Youth Welfare Offices, the German Youth Institute and the Association of Analytic Child and Adolescent Psychologists in Germany. Likewise, parents who are genetically related to the child are willing to invest more in their child compared to someone with whom the child has a close bond but who is not genetically related to the child and has no legal rights and duties in relation to the child. According to these insights, the lack of legal possibilities to protect the child and promote the child’s development generally has an adverse affect on persons with whom the child has a close bond. This in turn has a negative effect on their ability to be a source of emotional security for the child.

64

All of the expert third parties questioned in these proceedings agreed, as the child grows, their knowledge as to their biological origin becomes ever more important. Biological origin starts to play a role at the latest when children enter primary school and becomes of high importance when they are teenagers. The German Psychology Society further noted that the question of why the biological parent is not the legal parent is also important, i.e. it matters to the child whether the situation arose because the parent was not interested in caring for them or whether there are other reasons for this.

65

(2) Conversely, there were no submissions that would suggest that assigning parental responsibility to three parents (mother, biological father and legal father) would, from the outset, prevent the state from exercising its constitutional responsibility as guarantor (para. 50 f.) due to an unclear division of responsibility among the parents, who are primarily responsible for raising and caring for the child. Only if it were not possible to identify which of the three parents exercised their responsibility in a manner detrimental to the child’s best interests, would the state be hindered in exercising its responsibility for overseeing and ensuring that the child may actually develop into a self-reliant person while in the parents’ care. Experts have not raised any such concerns.

66

d) Interpreting Art. 6(2) first sentence of the Basic Law in light of the protection that Art. 8(1) of the Convention affords to private and family life does not open up more extensive rights for biological parents than those set out above. Pursuant to the case-law of the European Court of Human Rights, the protection afforded by Art. 8 of the Convention already applies if the biological father intends to have a family life with his child and the fact that such family life could not be fully established is not attributable to the biological father (cf. European Court of Human Rights (ECtHR), Pini and Others v. Romania, Judgment of 22 June 2004, no. 78028/01 and others, §§ 143, 146; Ahrens v. Germany, Judgment of 22 March 2012, no. 45071/09, § 58; Kautzor v. Germany, Judgment of 22 March 2012, no. 23338/09, § 61). Relevant factors for the potential relationship to be protected under Art. 8 of the Convention are the nature of the relationship between the biological parents, as well as the biological father’s demonstrable interest in the child both before and after the birth (cf. ECtHR, Rozanski v. Poland, Judgment of 18 May 2006, no. 55339/00, § 64; Kautzor v. Germany, Judgment of 22 March 2012, no. 23338/09, § 61). However, member states have a wide margin of assessment as to whether biological fathers should only be able to have their right to build a family life with the child clarified incidentally in contact right proceedings or whether the biological father must also be granted the right to contest the legal father’s paternity in order to also become the legal father (cf. ECtHR, Kautzor v. Germany, Judgment of 22 March 2012, no. 23338/09, § 78; Markgraf v. Germany, Decision of 10 March 2015, no. 42719/14, § 23). Accordingly, Art. 8 of the Convention does not give rise to an obligation for the member states to allow the biological father the right to contest legal paternity at all, or to allow for their biological paternity to even be judicially determined (cf. ECtHR, Ahrens v. Germany, Judgment of 22 March 2012, no. 45071/09, §§ 71, 75 ff.; Kautzor v. Germany, Judgment of 22 March 2012, no. 23338/09, §§ 72, 78; Markgraf v. Germany, Decision of 10 March 2015, no. 42719/14, § 23).

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2. § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code do not do justice to the status that biological fathers have as holders of the fundamental right under Art. 6(2) first sentence of the Basic Law. This statutory provision affects the biological fathers’ fundamental right of parental care (see (a) below). While this provision is compatible with the structural elements that define Art. 6(2) first sentence of the Basic Law (see (b) below), it disproportionately interferes with the fundamental right of parental care (see (c) below).

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a) § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code affects the protection of the right of parental care, which Art. 6(2) first sentence of the Basic Law also affords to those who are only biological, i.e. not legal, fathers and which encompasses the possibility to obtain parental responsibility. This fundamental rights guarantee is affected by the provisions on paternity challenge that are indirectly challenged here. Pursuant to § 1600(2) first alternative of the Civil Code, the biological father is precluded from becoming the legal father if there is a social and family relationship between the child and the legal father (§ 1592 no. 1 and 2 of the Civil Code) at the relevant point in time within the meaning of § 1600(3) first sentence of the Civil Code. This applies even if the biological father also has or used to have a social and family relationship with his child or if he has consistently sought to establish legal paternity from early on. As legal paternity is a requirement for having custody of the child under ordinary law – i.e. the legal means to assume parental responsibility –, biological fathers who are unsuccessful in challenging paternity are denied the parental responsibility that defines the right of parental care. Under extant law, if the biological father’s paternity challenge is unsuccessful, he generally may not contest paternity again (para. 7). This also applies if the social and family relationship between child and legal father that was the reason for the first unsuccessful paternity challenge ceases to exist at a later point in time. Without the participation and agreement of third parties, particularly the mother (cf. § 1592 no. 2 and § 1595(1) of the Civil Code), it is then no longer possible for the biological father to also become the legal father. He is thus permanently excluded from assuming legal parental responsibility.

69

b) § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code are compatible with the structural elements defining the fundamental right of parental care, even if biological fathers generally only have one opportunity to contest paternity in order to become the legal father und thus acquire the prerequisites for having custody and assuming legal paternal responsibility. While the fundamental right of parental care is inextricably linked to parental responsibility, this fundamental right does not require that all parents within the meaning of Art. 6(2) first sentence of the Basic Law are granted the same rights in terms of raising the child. The right of parental care also does not preclude extending legal parenthood to three parents; however, it does not require that ordinary law be designed in that way (para. 48). Should the legislator choose to continue to limit legal parenthood under the ordinary law to two persons, then the fundamental right of parental care, in principle, requires that biological fathers who are ready to assume parental responsibility have the possibility of attaining legal parenthood as a prerequisite for exercising parental responsibility. As a starting point, this is essentially the case with the right to contest paternity available under § 1600(1) no. 2 and § 1600(2) of the Civil Code. Under extant ordinary law, a biological father may also obtain (shared) custody once he has become the legal father (cf. § 1626a of the Civil Code).

70

§ 1600(2) first alternative and § 1600(3) first sentence of the Civil Code also satisfies the focus on the child’s best interests that follows from Art. 6(2) first sentence of the Basic Law, which defines the structure of the right of parental care (see in this respect, para. 51 f.) The ‘negative’ prerequisite under § 1600(2) first alternative of the Civil Code, i.e. that a paternity challenge is ruled out if there is a social and family relationship between child and legal father (§ 1592 no. 1 und 2 and § 1593 of the Civil Code), has the following purpose: to protect an actually existing social and family community of shared responsibility in which the child is being raised against potential interferences by the biological father, who seeks parental responsibility against the will of the mother and legal father. In referring to this Senate’s Order of 9 April 2003 (BVerfGE 108, 82; cf. Bundestag document, Bundestagsdrucksache – BTDrucks 15/2253, p. 7, 11), the legislator makes clear that, by implicitly limiting legal parenthood to two parents, it pursues the constitutionally unobjectionable aim of avoiding conflicts as to the division of competences and arguments between more than two parents that may not be in the best interests of the child (cf. also BVerfGE 108, 82 <103>). This takes account of the requirement in the fundamental right of parental care that the parent-child relationship serves the child’s best interests.

71

c) However, the indirectly challenged provisions under § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code disproportionately interfere with the complainant’s fundamental right, as a biological father, of parental care. It is true that the legislator pursues legitimate aims through these provisions (see aa) below) and that the provisions are suitable (see bb) below) and necessary (see cc) below) to achieve these aims. But the interference with the complainant’s fundamental right of parental care is not proportionate in the strict sense and thus not reasonable (see dd) below).

72

aa) § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code serve multiple legislative purposes, some of which conflict in part. One purpose is to afford biological fathers the right to challenge paternity (following BVerfGE 108, 82 ff.). Another purpose is to limit the possibility for biological fathers to challenge paternity if there is a social and family relationship between child and legal father (§ 1592 no. 1 and 2 and § 1593 of the Civil Code) at the relevant point in time within the meaning of § 1600(3) first sentence of the Civil Code. The legislator thereby intends to both guarantee legal certainty in matters of parentage (stability and clarity in legal status) and ensure the protection or ‘wellbeing’ of the social family (cf. BTDrucks 15/2253, p. 8 f., 11). While not explicitly mentioned in the legislative materials (cf. in this respect BVerfGE 151, 101 <136 para. 89>; 159, 223 <298 para. 169>), the latter recognisably also includes the protection of the child’s best interests. Under constitutional law, it is only the biological father’s exclusion from the right to contest paternity that warrants justification.

73

Each of the purposes pursued by such exclusion are constitutionally legitimate; they remain particularly closely aligned to the normative requirements of the duty to design the statutory framework (para. 34). The substantive and temporal limitations on the right to contest paternity as well as the limitations as to who may challenge paternity guarantee stability and clarity in legal status ([...]). Guaranteeing stability and clarity in legal status is a justified interest, given that the parentage status has universal effect and entails multiple consequences (para. 2; cf. also BTDrucks 15/2253, p. 11). The same applies to the purpose of protecting the social family’s lasting stability and the peace within the family unit, particularly for the benefit of the child (cf. BVerfGE 108, 82 <107>; on the importance of a stable relationship between the parents as well as between parents and child, see also BVerfGE 151, 101 <136 ff. paras. 90 ff.> — stepchild adoption). Restricting the biological father’s right to challenge the legal father’s paternity is also a legitimate means to guarantee a stable environment when assigning parental responsibility. Such restriction thus ensures that the child’s fundamental right under Art. 2(1) in conjunction with Art. 6(2) first sentence of the Basic Law to be supported in their development into a self-reliant person within society is fulfilled (see para. 50 f.), thereby guaranteeing the child’s best interests.

74

bb) Restricting the biological father’s right to challenge paternity under § 1600(1) no. 2 of the Civil Code in substantive terms (cf. § 1600(2) and § 1600(3) first sentence of the Civil Code) and in temporal terms (cf. § 1600b(1) of the Civil Code) is suitable under constitutional law (cf. on the applicable standard, BVerfGE 158, 282 <336 para. 131>; 159, 223 <305 para. 185>). Given that a biological father generally may only challenge paternity once (para. 7), such restriction not only allows to promote stability and clarity in legal status but also to protect the existing social family, which generally is in the child’s best interest. By generally precluding the biological father from renewing a paternity challenge, even if there no longer is a social and family relationship between legal father and child as protected under Art. 6(1) of the Basic Law, the statutory provisions at issue here do not give rise to effects that run counter to the pursued purposes in a manner making the provisions unsuitable (cf. BVerfGE 158, 282 <336 para. 131>; established case-law). Generally, the legislator may make use of typification in exercising the discretion accorded to it with regard to the suitability of a measure (cf. in this respect BVerfGE 159, 223 <305 f. para. 185>; 159, 355 <406 f. para. 114> each with further references). This particularly applies for ensuring legal certainty in the form of stability and clarity in legal status – both of which are of significance when determining parentage and assigning parenthood due to the far-reaching effects each aspect entails.

75

cc) Precluding the biological father from challenging paternity if there is a social and family relationship between child and legal father – as effected by § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code – is necessary under constitutional law both to guarantee stability and clarity in legal status and to protect the child’s interest in having persons with whom the child has a stable social and emotional relationship (cf. on the applicable standard, Federal Constitutional Court, Order of the First Senate of 1 February 2023 - 1 BvL 7/18 -, para. 139 with further references — child marriages). It is not discernible that there are any other legal means available to the legislator that are less burdensome for the holders of fundamental rights, third parties and the general public while being clearly equally as effective in achieving the two legislative goals pursued through the restriction of the right to contest paternity.

76

It is true that the interference with the confirmed biological father’s fundamental right of parental care would be less severe if his paternity challenge were decided in a case-by-case assessment guided by the child’s best interests as to whether keeping legal paternity with the current legal father or reassigning legal paternity based on the biological father’s readiness to assume parental responsibility best serves the child’s interest ([...]). However, if the statutory framework on paternity challenges were so designed, the proceedings would be more burdensome for the other affected holders of fundamental rights – namely, the child, the mother and the legal father – and it would result in an increased workload for the ordinary courts. In order to assess whether the prerequisites for challenging paternity are met, it would be necessary to increase the consideration given to the former and current relationship between child and biological father and it could not be limited to only the relevant point in time within the meaning of § 1600(3) first sentence of the Civil Code to assess the parent-child attachment bond. Moreover, there would be a more severe interference with the protection of social family life that is afforded under Art. 6(1) of the Basic Law for the benefits of the mother. This would result in interference with the existing social family against the will of the mother and legal father.

77

It is not even certain that a rule that allows flexibility in determining the point in time at which to assess whether the requirements for a paternity challenge are met depending on the individual case ([...]) would always be less burdensome for biological fathers entitled to contest paternity ([...]) than a uniformly fixed point in time ([...]). Moreover, if the relevant point in time were to be flexibly determined from case to case, this would require a more expansive assessment of the facts of the case.

78

A rule that permitted biological fathers who are ready to assume parental responsibility and who were unsuccessful in their first paternity challenge a further possibility to contest paternity – for example, if the social and family relationship between child and legal father ceases to exist – would interfere less severely with the biological father’s fundamental right of parental care than the indirectly challenged provisions do in conjunction with § 1600b(1) of the Civil Code. However, such a provision would not achieve the sought-after legislative goals in an equally effective manner. Rather, it would weaken the desired stability and clarity in legal status. Moreover, such a provision would be more burdensome for the child and their mother, given that it would expose them to further proceedings and yet another assessment of whether there still is a social and family relationship between child and legal father under § 1592 no. 1 und 2 and § 1593 of the Civil Code. Given that the factual requirements for the ‘negative’ prerequisite under § 1600(2) first alternative of the Civil Code must be thoroughly examined ([...]), this would involve a second factual examination in court focusing on the personal relationship between child and his (potentially former) legal father.

79

dd) This notwithstanding, § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code inappropriately interfere with the complainant’s fundamental right of parental care (Art. 6(2) first sentence of the Basic Law) as biological father entitled to challenge paternity pursuant to § 1600(1) no. 2 of the Civil Code because they do not provide him with a sufficiently effective possibility of becoming the legal father. They are therefore not proportionate in the strict sense.

80

(1) For a measure to be appropriate, and thus proportionate in the strict sense, the purpose pursued by the measure, and the likelihood of achieving that purpose, must not be disproportionate to the severity of the interference with the fundamental right (cf. BVerfGE 159, 223 <318 f. para. 216 f.>; 159, 355 <413 f. para. 134 f.>; Federal Constitutional Court, Order of the First Senate of 1 February 2023 - 1 BvL 7/18 -, para. 155 —child marriage; established case-law).

81

(2) § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code do not satisfy this requirement. Pursuant to these provisions, a biological father who is ready to assume parental responsibility – such as the complainant – is without exception denied the right to challenge legal paternity, even if he shares a social and family relationship with his child himself and has done everything in his power to become the child’s legal father and even if there no longer is a social and family relationship between legal father and child that is protected under constitutional law. These statutory provisions fail to take account of the fundamental right of parental care in a sufficiently effective manner. They fail to strike an appropriate balance between, on the one hand, the right of parental care held by those biological fathers who, albeit not having legal paternity, are ready to assume parental responsibility and, on the other hand, the goals sought by the legislator in limiting the right to contest paternity, especially since the interests of the children concerned are not sufficiently taken into account.

82

(a) § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code interfere with the fundamental right of parental care (Art. 6(2) first sentence of the Basic Law) of biological fathers who are entitled to contest paternity. The interference is of considerable severity. It is already significant that, when assessing the prerequisites for contesting paternity, it does not make any difference whether there used to be a social and family relationship between child and the biological father challenging paternity or whether such relationship existed at the relevant point in time within the meaning of § 1600(3) first sentence of the Civil Code. Under § 1600(2) first alternative of the Civil Code – as interpreted by the Federal Court of Justice –, consideration may neither be given to a social and family relationship between child and biological father nor to a social and family relationship between child and legal father ([...]). This understanding of the provision is based on its wording – which only refers to the social and family relationship between child and legal father – and the legislative history and the legislative purpose; the constitutional review of this statutory provision must be based on this understanding (on an interpretation in conformity with the Basic Law, see paras. 104 ff.). This interferes considerably with the biological father’s fundamental right of parental care if he once exercised or currently does exercise actual responsibility for his child, for example, by frequently spending time with the child.

83

Another factor contributing to the severity of the interference with the fundamental right is that the ordinary law precludes, solely on the basis of the ‘negative’ prerequisite in § 1600(2) first alternative of the Civil Code – to wit: the existence a social and family relationship between child and legal father at the relevant point in time –, consideration of the nature and extent of the petitioning biological father’s previous efforts to obtain legal paternity or his relationship with his child (cf. however Federal Constitutional Court, Order of the Second Chamber of the First Senate of 25 September 2018 - 1 BvR 2814/17 -, para. 21 f.). But such efforts generally allow the inference that the biological father is ready to (also) assume the legal parental responsibility that defines the fundamental right of parental care under Art. 6(2) first sentence of the Basic Law. Another significant factor is that the duration of paternity challenge proceedings can mean that a social and family relationship between the child and the legal father that did not exist at the time the paternity challenge was initiate might yet come into existence by the time the proceedings before the highest court deciding on points of fact end, which, according to the Federal Court of Justice, is the decisive point in time (see para. 8). However, the fact that the relevant point in time has been defined in this way can also act in the biological father’s favour in some cases ([...]).

84

The severity of the interference with the biological father’s fundamental right of parental care also follows from the fact that if the biological father’s first attempt to contest paternity was unsuccessful due to the child and legal father sharing a social and family relationship at the time – meaning that the ‘negative’ prerequisite under § 1600(2) first alternative of the Civil Code was not met –, the biological father is denied the right to challenge paternity again even once the social and family relationship between child and legal father no longer exists (cf. BVerfGE 108, 82 <109>). Once a paternity challenge has been unsuccessful, biological fathers can no longer seek to become the child’s legal father on the basis of the rights granted to them under ordinary law. Yet, having legal parenthood is the prerequisite for obtaining (shared) custody. Having custody, in turn, generally is necessary to have any ability to exercise the legal parental responsibility that defines the fundamental right of parental care under Art. 6(2) first sentence of the Basic Law. As a result, once the biological father is unsuccessful in contesting paternity, he remains permanently barred from assuming legal parental responsibility.

85

The severity of the interference with the biological father’s fundamental right of parental care is not substantially reduced by the fact that, if a paternity challenge is unsuccessful due to the ‘negative’ prerequisite in § 1600(2) first alternative of the Civil Code, a paternity challenge can still be made by the legal father, the mother or the child (cf. § 1600(1) nos. 1, 3 and 4 of the Civil Code). If one of them successfully challenges paternity, the biological father may still acknowledge paternity and thus become the legal father (§ 1592 no. 2 and § 1594(2) of the Civil Code), provided that the mother consents (§ 1595(1) of the Civil Code) and – if the mother does not have parental custody in this respect – the child also consents (§ 1595(2) of the Civil Code). However, this option is not available to the biological father himself, but instead is contingent on the cooperation of third parties.

86

The rights of contact and information granted to a biological, but not legal, father under § 1686a of the Civil Code are not of decisive importance in assessing the severity of the way in which § 1600(2) first alternative and § 1600(3) of the Civil Code interfere with the fundamental right of parental care. While these rights of contact and information do amount to ‘parenthood light’ according to the legislator (cf. BTDrucks 17/12163, p. 12), they are not linked to the rights and duties that define the fundamental right of parental care under Art. 6(2) first sentence of the Basic Law. [...]

87

b) The fundamental right of biological fathers must be balanced against two interests of considerable importance: protecting the social and family community made up of the legal parents and child and pursuing legal clarity and certainty in terms of parentage (stability and clarity in legal status). The first goal of protecting the social and family community between legal parents and child is accorded significant weight, given that the legislator pursues it to exercise its responsibility as guarantor in relation to the child (Art. 2(1) in conjunction with Art. 6(2) first sentence of the Basic Law). This responsibility also includes guaranteeing the child’s opportunities to develop into an independent and self-reliant person within society. Stable relationships within the family in which the child is raised are therefore of great importance (cf. BVerfGE 151, 101 <132 para. 76, 133 para. 79>). The goal of securing stability and clarity in legal status when determining parentage is also significant, particularly due to the great importance of a child’s parentage status, which is of relevance in a number of different areas of the law (see para. 2).

88

In addition to the purposes explicitly mentioned by the legislator, the ‘negative’ prerequisite in § 1600(2) first sentence of the Civil Code also safeguards the protection of the family – a protection that is constitutionally guaranteed by Art. 6(1) of the Basic Law. While the ‘negative’ prerequisite under § 1600(2) first alternative of the Civil Code only explicitly refers to the social and family relationship between child and legal father that is itself protected by Art. 6(1) of the Basic Law, the preclusive effect in case the ‘negative’ prerequisite is not met typically protects the entire family unit, including the mother. The provision thus serves the freedom protected by the fundamental right of family life that allows the actual community of parents living with and bringing up their child or children to determine for themselves how to live together (cf. in this respect BVerfGE 108, 82 <112>; 151, 101 <124 f. para. 56>; 159, 223 <276 para. 108>; established case-law). The ‘negative’ prerequisite under § 1600(2) first alternative of the Civil Code safeguards this freedom, which would be jeopardised if the biological father who is not part of the family unit were afforded legal paternity and thus parental responsibility.

89

(c) In considering the period to contest paternity established in § 1600b(1) of the Civil Code, the provisions under § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code fail to strike an appropriate balance between the rights of the biological father and those of the legal parents and the child, despite the significance of the legislative goals that these provisions pursue. The provisions indirectly challenged here inappropriately interfere with the fundamental right of parental care (Art. 6(2) first sentence of the Basic Law) of biological fathers who are entitled to challenge paternity pursuant to § 1600(1) no. 2 of the Civil Code. The interference is inappropriate in particular because a current or former social and family relationship between biological father and child receives just as little consideration as the biological father’s sustained efforts to obtain legal paternity, and because the biological father is without exception precluded from challenging paternity if the ‘negative’ prerequisite in § 1600(2) first alternative of the Civil Code was once not met, even if the social and family relationship between child and legal father, which caused this preclusive effect, no longer exists.

90

(aa) The disproportionality of these provisions is not based on the fact that the legislator has limited legal paternity to two parents under ordinary law or that a social and family relationship between child and legal father that exists at the relevant point in time (§ 1600(3) first sentence of the Civil Code) is given precedence over the genetic kinship between child and biological father when assigning legal parentage status. The fact that, the biological father is also a holder of the fundamental right of parental care under Art. 6(2) first sentence of the Basic Law in addition to the legal parents means that the legislator may enact ordinary legislation extending parenthood to more than two parents; however, the legislator is not under an obligation to do so (para. 48). Limiting parenthood under ordinary law to no more than two parents does not, on its own, inappropriately interfere with the biological father’s fundamental right of parental care. Nor does giving general precedence to the social and family relationship between child and legal father, as § 1600(2) first alternative of the Civil Code does. As a starting point, the legislator does fulfil its task of assigning parental status in the legal sense and designing the legal framework conditions for raising and caring for the child in a manner that serves the child’s best interests. When designing the specific way of assigning parental status by law, great importance must be accorded to the child’s interest, which is protected by fundamental rights, in having functioning and effective parental care and upbringing guaranteed by the state (cf. BVerfGE 133, 59 <73 ff. para. 42 f.>). This applies both when parental status is assigned for the first time and when subsequent changes are made. In both cases, the legislator may, in principle, attribute different significance to the legal, biological and social facts. Constitutional law does not impose strict requirements on the legislator in terms of the weight attributed to parentage on the one hand and the social and family community of shared responsibility on the other. This is why, as a starting point, it is not objectionable under constitutional law if the biological father is generally excluded from challenging paternity in order to protect an existing legal and social family, even if the biological father had already established a social and family relationship between himself and the child (cf. BVerfGE 108, 82 <90, 106, 109, 112 f.>; Federal Constitutional Court, Order of the Second Chamber of the First Senate of 25 September 2018 - 1 BvR 2814/17 -, para. 19 with further references; on the necessity of there being the possibility to consider all these circumstances, cf. para. 91).

91

(bb) § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code nevertheless inappropriately interfere with the fundamental right of parental care of biological fathers who are ready to assume parental responsibility because, as interpreted by the Federal Court of Justice ([...]), which interpretation is the subject of this constitutional review, the provisions at issue, from the outset, preclude any consideration from being given to the biological father’s relationship with his child or to the type and extent of the biological father’s previous efforts to obtain legal paternity that demonstrate his readiness to assume parental responsibility. This does not take sufficient account of the effect of the fundamental right to family life under Art. 6(1) of the Basic Law, which reinforces the biological fathers’ fundamental right of parental care ([...]), and therefore does not sufficiently take into account the fundamental right of parental care itself. The biological father’s interest in maintaining the relationship to this child is still protected by Art. 6(1) of the Basic Law, as an effect of the protection afforded to the family relationship, even if it has been made impossible for the biological father to actually assume responsibility for the child (cf. in this respect BVerfGE 108, 82 <112 f.>). It is true that neither Art. 6(2) first sentence nor Art. 6(1) of the Basic Law provide the biological father who is not the legal father with a claim to continue exercising responsibility in relation to the child. But even if the biological father can no longer exercise such responsibility, the personal bond that has been established, which is also supported by genetic kinship, continues to exist.

92

The fact that the fundamental right to family life under Art. 6(1) of the Basic Law reinforces the fundamental right of parental care (Art. 6(2) first sentence of the Basic Law) in favour of the biological father is also of significance if the social and family relationship between biological father and child has ceased to exist for reasons that are not attributable to the biological father. When taking account of the guarantees arising from Art. 8 of the Convention as interpreted by the European Court of Human Rights (cf. ECtHR, Pini and Others v. Romania, Judgment of 22 June 2004, no. 78028/01 and others, §§ 143, 147; Ahrens v. Germany, Judgment of 22 March 2012, no. 45071/09, § 58; Kautzor v. Germany, Judgment of 22 March 2012, no. 23338/09, § 61), this reinforcing effect is already of importance if the biological father intended to establish a social and family relationship with his child, but was unsuccessful for reasons not attributable to him. For the biological father, it is largely out of his control if the relationship to his child breaks down due to reasons not attributable to him or if such relationship cannot be established in the first place. Rather, the success or failure of the relationship depends on the behaviour and the personal circumstances of the child and the legal parents. Thus, the child’s age will generally be of importance, particularly the child’s ability to express their will in terms of whom they are – and want to be – close to. Further factors that typically are also of importance are the mother’s readiness to cooperate, her relationship to the biological father and a possible partnership with a different person who also assumes a parental role in relation to the child. The indirectly challenged provisions do not permit consideration of the guarantees for the biological father to initiate a relationship with his child and therefore inappropriately interfere with the biological fathers’ fundamental right of parental care.

93

(cc) A further reason why the challenged provisions do not strike an appropriate balance between the sought-after legislative goals and the fundamental right of parental care of biological fathers who are ready to assume parental responsibility is that biological fathers are not given a sufficient possibility to influence the prerequisites set out in § 1600(2) first alternative of the Civil Code by way of their own conduct. The success or failure of a paternity challenge submitted by a person entitled to do so pursuant to § 1600(1) no. 2 of the Civil Code often depends on the vagaries of the chronological sequence of events, the wishes of the mother, the involvement of the youth welfare office and the caseload of the family courts, which can lead to a ‘race against time’ to establish legal paternity (cf. Federal Constitutional Court, Order of the Second Chamber of the First Chamber of 25 September 2018 - 1 BvR 2814/17 -, para. 21; […]). The biological father’s paternity challenge will be unsuccessful if the mother prevents him from having contact with the child and if by the end of the court proceedings – which may involve appeal proceedings and take several years – (cf. Federal Constitutional Court, Order of the Second Chamber of the First Senate of 25 September 2018 - 1 BvR 2814/17 -, para. 4 ff.) the legal father, who previously acknowledged paternity with the mother’s consent, has assumed a parental role in relation to the child ([...]). If legal paternity is limited to two parents – as is the case under extant law –, the provisions on paternity challenges under § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code do not do justice to the biological fathers’ entitlement to an effective procedure for obtaining legal paternity (para. 36 and 47), guaranteed by Art. 6(2) first sentence of the Basic Law.

94

The inappropriateness of these provisions is not obviated by the fact that the biological father has the possibility to become the legal father of his child by a means other than paternity challenge proceedings. There are no sufficiently effective ways to do so without the cooperation of third parties, in particular the mother. The biological father cannot access the possibilities existing in this respect on his own initiative.

95

Even before reaching the stage of paternity challenge proceedings, any possibilities for the biological father to become the legal father are largely contingent on the actions of third parties. The biological father’s application to have his paternity determined remains without success if another man acknowledges paternity with the mother’s consent (§ 1592 no. 2 and § 1594 of the Civil Code). This is possible even if both the mother and the man acknowledging paternity know for certain that the latter is not the child’s biological father. Given that paternity may be acknowledged and consented to prior to birth, the biological father may be precluded from becoming the child’s legal father from the very beginning. Even if the mother has not yet married another man (cf. § 1592 no. 1 of the Civil Code) or this man has not yet acknowledged paternity for the child with the mother’s consent (cf. § 1592 no. 2 of the Civil Code), the biological father’s acknowledgment of paternity depends on the mother’s consent under § 1595 of the Civil Code.

96

(dd) The inappropriateness of the provision set out in § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code also follows from the fact that the biological father cannot challenge paternity on his own initiative and thus is excluded from becoming the legal father even if the social and family relationship between the child and current legal father – the reason for excluding the biological father from contesting paternity – has ceased to exist after the relevant point in time within the meaning of § 1600(3) first sentence of the Civil Code. By excluding paternity challenges even in such a constellation, the legislator pursues the goal of protecting legal certainty (cf. BTDrucks 15/2253, p. 11). But too little consideration is thereby given to the fact that, in such a constellation, there are no countervailing interests of constitutional significance that supersede those of the biological father and could legitimise excluding a paternity challenge and the associated denial of the possibility to assume parental responsibility. It may be in the mother’s interest to (continue to) not share parental status under ordinary law with the biological father. However, Art. 6(2) first sentence of the Basic Law does not protect such interest (cf. BVerfGE 108, 82 <109>). In the case of no existing social and family relationship between child and legal father, the biological father’s paternity challenge would mean a change in parentage status for the child. Generally, such change cannot significantly interfere with the child’s best interests because child and legal father no longer live together and no longer share a relationship that could be jeopardised to the detriment of the child’s best interests. If the biological father contested paternity (anew) once the ‘negative’ prerequisite under § 1600(2) first alternative of the Civil Code is met, the child’s parentage status would change. While such a change in legal status would generally not enable the child to live together with both parents as a family, it would at a minimum allow legal and biological paternity to coincide (cf. BVerfGE 108, 82 <109 f.>). Excluding the biological father from challenging paternity after the social and family relationship between child and legal father has ceased to exist generally leads to a result in which – apart from the interest in legal certainty (para. 97) – all other affected and protected interests are no longer served ([...]).

97

The goal of guaranteeing legal certainty in terms of stability and clarity in legal status does not suffice on its own to justify an appropriate balance of interests if there no longer are any other protected interests that run counter to the biological father’s paternity challenge. This also follows from the severity of the interference with the biological fathers’ fundamental right of parental care, as a result of the exclusion from the right to challenge paternity. The severity of this interference, in turn, largely follows from the finality of the exclusion from the right to challenge paternity (see in this respect, para. 7). If the biological father is permanently precluded from becoming the legal father by relying on his rights under ordinary law, this may mean that a genuine relationship between biological father and child will, contrary to the lived reality, never find legal recognition, while a past social and family relationship which has long since broken apart will be protected. The indirectly challenged provisions do not allow for any way of remedying a situation in which the legal relationships are not in line with the lived reality.

98

The disproportionality of § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code also applies to paternity challenges by persons who are entitled to lodge such proceedings under § 1600(1) no. 2 of the Civil Code and in whose case the legal paternity of a man other than the biological father rests on § 1592 no. 1 of the Civil Code, i.e. the marriage between the mother and the legal father. In such a constellation - just as in the case of paternity acknowledgment under § 1592 no. 2 of the Civil Code –, the social and family relationship between legal father and child may cease to exist after the relevant point in time within the meaning of § 1600(3) first sentence, for instance, if the marriage with the mother were to dissolve. If, however, there is no social and family relationship between legal father and child, for the reasons elaborated above, there are no sufficiently weighty reasons that could constitutionally justify the significant interference with the fundamental right of parental care of biological fathers who are ready to assume parental responsibility.

99

(ee) The exclusion of the right to challenge paternity under § 1600(1) no. 2 of the Civil Code for biological fathers who are entitled to contest paternity applies without exception if the ‘negative’ prerequisite in § 1600(2) first alternative of the Civil Code is not met, irrespective of whether the biological father and the child have an established relationship between themselves and regardless of the biological father’s efforts to assume legal paternity; the exclusion even continues to apply without exception even after the ‘negative’ prerequisite is met. This type of exclusion is not proportionate in the strict sense even when considering the interests of the affected child. § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code do not strike an appropriate balance between the child’s interests protected by fundamental rights and those of the biological father. The child’s interests are of particular importance in the balancing of different needs and interests that is required when designing parentage rules ([...]). If fundamental rights protected by Art. 6(2) of the Basic Law conflict with each other, i.e. if the parents’ interests – for instance concerning legal paternity of a child as is the case here – come into conflict, the child’s best interests must play the key role in handling this conflict, given that the fundamental right of parental care serves the best interests of the child.

100

§ 1600(2) first alternative and § 1600(3) of the Civil Code constitute an advance, general decision in favour of the child’s best interests ([...]). The legislator assumes in an abstract and general manner that the child’s primary interest is to grow up peacefully in a legal family, irrespective of the actual social relationships within this family and of other family ties. This assumption is also based on the legislator’s goal of ensuring stability and clarity in legal status. This goal is of general importance because conflicts detrimental to the child’s best interests might arise if the legal status assigned does not reflect the social and family relationship; such conflicts may also adversely affect the child’s sense of belonging (cf. BVerfGE 108, 82 <109>). The legislator may reliably base this assumption on insights from research on attachment behaviour, which have been confirmed by the expert third parties involved in these proceedings [...] and according to which children generally need a high level of continuity in their relationships in order to develop resilient personalities. The child’s sense of belonging is negatively affected if the relationship to their parents is overshadowed by conflicts of loyalty. At the same time, a child needs emotional security within a family, i.e. an environment of peace and trust with their own autonomy.

101

It is doubtful whether this advance, general decision in favour of the child’s best interests can, on its own, justify completely precluding the biological father from the right to challenge paternity even if the requirements under § 1600(2) first alternative of the Civil Code are met and without consideration being given to his current or former social relationship with the child or his efforts to become the legal father. However, such justification can be completely ruled out if a decision on the paternity challenge not only completely disregards the relationship between biological father and child, but also dismisses the challenge on grounds that it remains impossible to contest paternity, even when, unlike before, the negative prerequisite under § 1600(2) first alternative of the Civil Code has now been met. Given that there no longer is a social family that includes the legal father, the protection of this social family that used to include child, mother and legal father is not sufficient to outweigh the biological father’s interests under the right of parental care. In such a case, the interest in safeguarding the family as a means of protecting the child and the child’s best interests cannot be used as a general counterweight to the biological father’s right of parental care.

102

(ff) The legislator’s authority to simplify or use typification does not justify excluding biological fathers who are entitled to challenge paternity under § 1600(1) no. 2 of the Civil Code from bringing such challenges without any consideration as to whether they have their own social and family relationship with the child and regardless of their efforts to assume legal paternity and even if there no longer is a social and family relationship between child and legal father, i.e. the ‘negative’ prerequisite arising from § 1600(2) first alternative of the Civil Code has now been met. The legislator is not a priori precluded from simplifying or using typification even when regulating matters other than mass procedures of administrative nature (cf. BVerfGE 151, 101 <145 f. para. 114>; see also Federal Constitutional Court, Order of the First Senate of 1 February 2023 - 1 BvL 7/18 -, para. 134). However, the typification used must not give rise to a high degree of unequal treatment, and the advantages arising from typification must be in adequate relation to this unequal treatment (cf. BVerfGE 151, 101 <146 paras. 116 ff.> with further references). When using typification and generalizations in the design of family law provisions that concern highly personal rights and legal interests, it may be necessary to allow for remedying a situation in which a provision continues to have legal effect even when the purpose that once justified such design based on typification and generalization no longer applies (cf. Federal Constitutional Court, Order of the First Senate of 1 February 2023 - 1 BvL 7/18 -, para. 180).

103

The provisions indirectly challenged here exceed the limits of the state’s authority to use typification. The limits of the authority to use typification in family law provisions are exceeded if biological fathers are generally excluded from the right to contest paternity even if a social and family relationship between child and biological father exists, existed or could exist thanks to the biological father’s serious efforts in this respect. The advantages of typification are adequately in relation to its consequences, given that typification results in barring a paternity challenge even if this severely interferes with the biological father’s fundamental right of parental care without any consideration of whether this is in the child’s best interest – such as, for instance, if there is or used to be a social and family relationship between biological father and his child. The submissions of the expert third parties show [...] that children are capable of forming close ties with several persons who have a parental role and that the increased complexity of attachment constellations does not place a greater burden on the children. The ‘negative’ prerequisite under § 1600(2) first alternative of the Civil Code is based on typification assessing the child’s best interests (cf. para. 100). Once this prerequisite is met, i.e. there no longer is a social and family relationship between child and legal father, there generally are no sufficiently weighty interests of other holders of fundamental rights that run counter to the biological father’s fundamental right of parental care. When this is the case, precluding paternity challenges is no longer constitutionally justified. The goal of ensuring stability and clarity in legal status cannot serve as a basis for the authority of using typification. Stability and clarity in legal status are not goals in their own right; rather, they serve the child’s best interests by safeguarding the existing social and family relationships that are important for the development of the child’s personality. If the child no longer has a social and family relationship with his father, a provision that precludes the biological father who is ready to assume parental responsibility from seeking such responsibility falls short of the requirement that extant and lived relationships and family structures be given an appropriate legal status [...]).

104

(gg) It is not possible to interpret § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code in a manner that results in their compatibility with the proportionality principle and the Constitution. While the statutory provisions at issue unmistakably reflect the importance of the social and family relationship between legal father and child, they do not reflect the possibility of also considering the child’s social and family relationship with the petitioning biological father when deciding on the paternity challenge, nor the possibility of determining the relevant point in time within the meaning of § 1600(3) first sentence of the Civil Code by reference to any other moment than the end of the proceedings before the highest court deciding on points of fact. An interpretation of these provisions in a manner allowing for these two possibilities would exceed the limits of a constitutional interpretation in both cases.

105

There are limits to interpretation in conformity with the Constitution, as such interpretation must be based on the wording of a provision (cf. BVerfGE 124, 25 <39>; established case-law), its legislative history and purpose. Interpretation in conformity with the Constitution does not allow the interpretation of a provision in a manner that contradicts the legislator’s clearly discernible will (cf. BVerfGE 112, 164 <183>; 122, 39 <61>; established case-law).

106

Based on these standards, it is not possible to interpret § 1600(2) first alternative of the Civil Code in conformity with the Basic Law, such that decisions on paternity challenges lodged by biological fathers entitled to contest paternity under § 1600(1) no. 2 of the Civil Code give consideration to a social and family relationship between child and biological father and his early and sustained efforts to become the legal father. The wording of this provision unmistakably only refers to the existence of a social and family relationship between child and legal father. The legislative history also suggests that, in implementing the obligation imposed by the Order of this Senate of 9 April 2003 (BVerfGE 108, 82 <84 Section II. 2. of the operative part of the judgment>), the legislator chose to make the social and family relationship referred to in § 1600(2) first alternative of the Civil Code the decisive criterion ([...]). As the legislative materials show, this legislative choice was guided by the understanding that the legal father’s fundamental right of parental care takes precedence over the biological father’s procedural right to seek legal paternity (cf. BVerfGE 108, 82 <105 f.>) if the current legal father shares a social and family relationship with the child ([...]). In its aforementioned decision, the Senate had, for such a constellation, not constitutionally objected to the social and family relationship within the existing family unit taking precedence over the biological father’s interest in becoming the legal father (cf. BVerfGE 108, 82 <106>). There are no recognisable indications that the legislator intended to apply different rules in terms of precedence – allowing the biological father to contest paternity despite an existing social and family relationship between child and legal father – when the biological father also shares such a relationship with the child ([...]).

107

It is also not possible to interpret the provisions at issue in a manner that does not result in their inappropriateness, not even if deviating from the interpretation of the Federal Court of Justice ([...]) as to the relevant point in time (§ 1600(3) first sentence of the Civil Code) for establishing whether the ‘negative’ prerequisite in § 1600(2) first alternative of the Civil Code has been met. This too would exceed the limits of the methods of constitutional interpretation. It is true that the use of the present tense (‘[a social and family relationship] exists’) does not as such necessarily rule out that the ‘relevant point in time’ could also mean a moment other than the end of the proceedings before the highest court deciding on points of fact ([...]). However, the Federal Court of Justice’s description of the way the statutory law is structured ([...]) rules out the possibility that the ‘relevant point in time’ – universally or even just depending on the circumstances in the specific case – could ever refer to a point in time prior to the end of the proceedings before the highest court deciding on points of fact. This becomes particularly clear when considering that universally choosing an earlier point in time would not universally strengthen the biological fathers’ right of parental care in paternity challenge proceedings ([...]).

108

Furthermore, it is not possible to assume that the provisions on paternity challenges by biological fathers entitled to challenge paternity under § 1600(1) no. 2 of the Civil Code could be interpreted as allowing biological fathers to renew their challenge once the ‘negative’ prerequisite in § 1600(2) first alternative of the Civil Code has been met. The legislator assumed that, once a paternity challenge was unsuccessful, it is not possible to ‘revive’ the right to challenge paternity (cf. BTDrucks 15/2253, p. 11). It is not permissible to interpret the statutory provisions in a manner contradicting the clearly recognisable intent of the legislator.

II.

109

The challenged order of the Higher Regional Court violates the complainant’s fundamental right of parental care arising from Art. 6(2) first sentence of the Basic Law. The decision rests on the application of § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code. These provisions disproportionately interfere with the complainant’s fundamental right of parental care. The Higher Regional Court decided that the complainant’s application to challenge paternity was unsuccessful because the provisions indirectly challenged here precluded the Higher Regional Court from giving consideration to earlier or current contacts between child and complainant and to the complainant’s early efforts to become the legal father (paras. 9 and 11).

D.

110

§ 1600(2) first alternative and § 1600(3) first sentence of the Civil Code are incompatible with Art. 6(2) first sentence of the Basic Law. Applying § 78 first sentence of the Federal Constitutional Court Act accordingly, the declaration of incompatibility is to be extended to § 1600(2) second alternative of the Civil Code. The provisions will continue to apply until the legislator has enacted new provisions, or 30 June 2025 at the latest. However, until the legislator has enacted new provisions, proceedings initiated by application of persons entitled to challenge paternity under § 1600(1) no. 2 of the Civil Code are to be suspended at the request of these persons (see (I) below). The challenged order of the Higher Regional Court violates the complainant’s fundamental right arising from Art. 6(2) first sentence of the Basic Law. The order must be reversed and the matter remanded to the Higher Regional Court (see (II) below).

I.

111

1. Pursuant to § 95(3) first and second sentences of the Federal Constitutional Court Act, a law that is unconstitutional is, in principle, also void (cf. BVerfGE 158, 282 <379 para. 237>; Federal Constitutional Court, Order of the First Senate of 1 February 2023 - 1 BvL 7/18 -, para. 187; established case-law). It follows from § 31(2) second and third sentences and § 79(1) and § 93c(1) third sentence of the Federal Constitutional Court Act that, under specific circumstances, an unconstitutional provision may be merely declared incompatible with the Basic Law. Issuing a mere declaration of incompatibility is a general possibility if the legislator has different ways to remedy the violation of the Basic Law (cf. BVerfGE 149, 222 <290 para. 151>; 158, 282 <379 para. 237>; established case-law). This can also be the case if the unconstitutionality does not arise from a violation of Art. 3(1) of the Basic Law (cf. BVerfGE 152, 68 <149 para. 212>; Federal Constitutional Court, Order of the First Senate of 1 February 2023 - 1 BvL 7/18 -, para. 187). A declaration of incompatibility, combined with an order for the temporarily continued application of the unconstitutional provision, can be issued if the immediate invalidity of the objectionable provision would eliminate the statutory basis for the protection of exceptionally significant public interests or could result in a legal vacuum, and if a balancing of these interests against the affected fundamental rights requires that the interference be tolerated for a transitional period (cf. BVerfGE 141, 143 <180 para. 84> with further references). The same applies if a declaration of voidness would lead to a state of affairs that would be even more unconstitutional than if the unconstitutional provision continued to apply temporarily (cf. Federal Constitutional Court, Order of the First Senate of 1 February 2023 - 1 BvL 7/18 -, para. 187 with further references).

112

2. Based on these standards, § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code are declared incompatible with the Basic Law to the extent recognisable in the operative part of the decision (see (a) below). However, the provisions continue to apply until the legislator has enacted new provisions, or 30 June 2025 at the latest. Otherwise, i.e. if the provisions were declared void, this would bring about a state of affairs that would be even more unconstitutional (see (b) below). In order to take the fundamental right of parental care into account while the unconstitutional provisions continue to apply, proceedings initiated by application of persons entitled to challenge paternity under § 1600(1) no. 2 of the Civil Code are to be suspended at the request of these persons (see (c) below).

113

a) The legislator has various possibilities to remedy the established violation of the Basic Law. If the legislator choses to continue limiting legal paternity to two parents and granting the biological father the possibility to challenge paternity in order to assume parental responsibility, it is possible to eliminate the constitutional violation by changing the prerequisites for a paternity challenge by a biological father. Given that the fundamental right of parental care under Art. 6(2) first sentence of the Basic Law – a right also held by biological fathers who are not legal fathers – does not exclude extending paternity under ordinary law to more than two parents, the legislator may also take account of the guarantees afforded to biological fathers by the fundamental right of parental care by granting them parental responsibility regardless of any parental status assigned by law. The defining structural elements of the fundamental right of parental care limit and guide the way in which this fundamental right is specified, including the requirements in terms of proportionality when considering the fundamental right interests of the child and of those who are involved as parents within the meaning of Art. 6(2) first sentence of the Basic Law.

114

b) An order of continued application is required until the legislator enacts new provisions. Otherwise, it would not be possible for the ordinary courts to apply § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code (cf. BVerfGE 135, 238 <245 para. 24>; established case-law). Fathers entitled to contest paternity under § 1600(1) no. 2 of the Civil Code would then be precluded from challenging paternity even if the provisions that are the object of constitutional review here would give them a prospect of success, for instance if there are no indications as to the existence of a social relationship between child and legal father (§ 1600(2) first alternative of the Civil Code). The ordinary court could not decide on such an application to contest paternity because the inapplicability of § 1600(2) first alternative and § 1600(3) first sentence of the Civil Code would result in there being no criteria on the basis of which to decide on the merits of the paternity challenge. The inapplicability of the provisions declared void would thus temporarily preclude biological fathers from contesting paternity, even though the fundamental right of parental care guarantees them access to an effective procedure to obtain legal paternity.

115

c) When the provisions declared unconstitutional here continue to apply, the applications of biological fathers entitled to challenge paternity under § 1600(1) no. 2 of the Civil Code could be unsuccessful on grounds of the ‘negative’ prerequisite under § 1600(2) first alternative of the Civil Code not being met. Therefore paternity challenge proceedings initiated by biological fathers entitled to do so must be suspended upon their request. The right to request suspension replaces the otherwise applicable obligation to suspend the proceedings (cf. on this obligation, BVerfGE 107, 27 <58>; established case-law).

116

3. Applying § 78 first sentence of the Federal Constitutional Court Act accordingly (cf. BVerfGE 158, 282 <380 para. 241>; established case-law), the declaration of incompatibility extends to § 1600(2) second alternative of the Civil Code. The reasons for the unconstitutionality of § 1600(2) first alternative of the Civil Code also apply with respect to the ‘negative’ prerequisite under § 1600(2) second alternative of the Civil Code precluding a paternity challenge in case there was a social and family relationship between the child and the legal father at the time of the latter’s death. Given that in such constellation the social and family relationship is dissolved by the legal father’s death, there are no sufficiently weighty reasons that can justify excluding the biological father from the right to contest paternity. As is the case for § 1600(2) first alternative of the Civil Code, § 1600(2) second alternative of the Civil Code also does not allow consideration of an already existing social and family relationship between child and biological father.

II.

117

The challenged order of the Higher Regional Court is reversed and the proceedings remanded to the Higher Regional Court (§ 95(2) of the Federal Constitutional Court Act). The complainant is entitled to request the Higher Regional Court to suspend the proceedings until the legislator enacts new provisions.

III.

118

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