GERMAN CONSTITUTIONAL COURT AND BIOLOGICAL FATHERS

The Budesverfassungsgericht released a decision on April 29th that gives more rights to biological fathers in disputed cases. The constitutional difficulty for the court lay in two provisions of the Basic Law, Article 6 section 1, which reads, Ehe und Familie stehen unter dem besonderen Schutze der staatlichen Ordnung ("marriage and the family are especially protected by the state"), and Article 6, Section 2, the first sentence of which reads, Pflege und Erziehung der Kinder sind das natürliche Recht der Eltern und die zuvörderst ihnen obliegende Pflicht ("Care and education of children are the natural right of the parents and a duty that is theirs first and foremost.") A recent reform in the law regulating children and familial obligations had excluded biological fathers when the mother was married to another man and that person was the child's legal father (which I take to be almost all of the time). Section one seems to indicate that marriage and familial relationships are paramount; the law preventing biological fathers from contesting paternity when there was already a legal father (i.e., husband) had been adopted in order to secure the "social peace" of the family, as this Tagesspiegel article puts it. In the case under review in the constitutional court, the mother and the biological father had an ongoing relationship and the biological father had been present at the birth of the child, had participated in choosing the name and had taken responsibility for some childrearing. After the mother ended the relationship, however, the biological father sought to establish legal paternity but ran up against the law excluding him from doing so. The constitutional court decided that Article 6, Section 2 gave some rights to biological fathers as well, at least when contact with the father would serve the interests of the child. In this case, apparently, the mother was no longer living with her husband, either, so there was no "social peace of the family" to protect between the mother and her legal husband.

NOTE: I would say more about this case if I knew more about family law and about the ways in which the court's ruling will be implemented by judges in contested paternity cases. Seems to me that if judges are empowered in child visitation cases to determine what is in the "interest of the child," then it makes sense to give them one more tool, namely, the option of allowing biological fathers to seek legal paternity. Biological fathers were barred from contesting paternity in certain cases by the previous law, and it seems to me that even without a textual foundation in the basic law, it makes sense to change that rule, in the abstract, at least.