The Federal Constitutional Court reinforces the rights of biological parents. Now the Bundestag must adapt family law, but it has room for maneuver to do so.

A child's hand in a man's hand.

The Federal Constitutional Court strengthens the rights of biological parents Photo: imago

KARLSRUHE taz | In the future there could be families with three legal parents. The Federal Constitutional Court has now opened this possibility. The Bundestag can freely decide whether it wants to use it. As long as the Bundestag adheres to the strict two-parent model, it must give the biological father who is not the legal father a fair opportunity to challenge the paternity of the legal father. The current family law is far from this requirement and, therefore, is unconstitutional. The Bundestag must improve it before the end of June 2025.

Specifically, it was a case that occurred in Saxony-Anhalt. A woman had a planned child with her boyfriend. The child was born in April 2020. But the mother separated from the man in June. Although she wanted to acknowledge his paternity, his mother rejected it. She already had a new boyfriend who soon moved in with her and in turn acknowledged the paternity of the baby. He is now the legal father of the child.

But the biological father fought for his status and questioned the paternity of the new couple. A paternity report showed that he is clearly the biological father. However, the Higher Regional Court in Naumburg dismissed the challenge. According to the law, a biological father cannot challenge the paternity of the legal father if he has a socio-familial relationship with the child. In this way he must protect the social family.

Biological parents are at a disadvantage

According to the Karlsruhe ruling, this legal situation is unconstitutional because it disproportionately restricts the parental authority of the biological father. It is not appropriate for a biological parent who is actively striving to be a parent and who has at times already cared for the child to have no chance of becoming a legal parent.

The legislator now has many options to react to the Karlsruhe ruling. He first has to decide whether he wants to stick with the strict two-parent model or allow three legal parents in individual cases. These would then be the mother, the biological father and the legal father.

The Federal Constitutional Court had previously declared that three parents were incompatible with the Basic Law. However, the court has now expressly withdrawn this requirement. The psychological experts did not raise any objection to this at the oral hearing in September. However, the Bundestag is not obliged to admit three parents. It is an option, not an obligation. The Minister of Justice, Marco Buschmann (FDP), has already given signs that he does not want to accept the idea.

Buschmann presented the key points

If the Bundestag maintains the two-parent model, it will at least have to re-regulate the right to challenge. Minister Buschmann already presented an adequate proposal in his key points on the paternity law in January. Under this, the biological father could challenge the legal father's paternity in court even if the legal father lives with the mother and child. The family court would now have to decide which legal parentage is best for the child's well-being. “When in doubt, the priority should be the interest in preserving the existing family,” he says in the key points.

If the Bundestag adopts Buschmann's model, the plaintiff from Saxony-Anhalt will probably not ultimately become a legal father, despite his success in Karlsruhe. Then he would have to be content with access rights and periodic visits from him.

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