Dhe Federal Constitutional Court has strengthened the position of men in the fight for legal paternity for their biological children. The constitutional complaint by a man from Saxony-Anhalt was partially successful on Tuesday in Karlsruhe. The First Senate ruled that the legal regulations on contesting paternity by biological fathers were incompatible with the basic parental rights. The law will remain in force until a new regulation is adopted, but no later than June 30, 2025. However, procedures initiated can be suspended upon request, said President Stephan Harbarth. (Ref. 1 BvR 2017/21)

When it comes to basic parental rights, the legislature must take into account the legal parenthood of the biological father alongside the mother and the legal father, it was said. “If, on the other hand, he sticks to limiting legal parenthood to two parents, a sufficiently effective procedure must be available in favor of the biological father that enables him to become the legal father of his child instead of the previous legal father.” The current one is sufficient for this Not right.

Legal reform already announced

The biological father of a now three-year-old son had sued his way through the courts to the highest German court in order to be legally recognized in the role. However, the child's mother had her new partner registered as the legal father a few months after the birth – but only after the plaintiff had filed an application to establish his paternity. The legal proceedings dragged on and the man was finally dismissed at the Naumburg Higher Regional Court (OLG).

This referred to the Federal Court of Justice (BGH), according to which the right of the biological father to challenge paternity is excluded without exception if there is a socio-familial relationship between the child and the legal father at the time of the last oral hearing at the family court. This is assumed if the man and the mother are married or the man and the child have lived together at home for a long time. The latter was the case in the specific constellation.

The Federal Constitutional Court has now overturned the Naumburg decision and referred the proceedings back to the Higher Regional Court. The father can apply for a stay of the proceedings until a new legal regulation is made.

In practice, this view was highly controversial. Federal Justice Minister Marco Buschmann (FDP) had therefore announced a legal reform before the verdict. He wants to strengthen the legal position of biological fathers who want to take responsibility for their child as legal fathers. Key points for modernizing parentage law include a blocking effect of a determination procedure. “As long as legal proceedings are ongoing in which a man wants to have his paternity established, in principle no other man should be able to recognize paternity of this child,” says the ministry. The draft laws are expected to follow in the first half of 2024.

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