Jurists love formal stability. The Federal Constitutional Court therefore usually writes its decisions in such a way that they read as a continuation of previous judgments – even if the focus of the content changes. If the judges write explicitly that their ruling contradicts previous case law, this is a sign of a 180-degree turn.
That was exactly the case on Tuesday: The First Senate upheld the constitutional complaint of a biological father who had been unsuccessful in challenging the legal paternity of another man due to the previous rules in the Civil Code. The mother's new partner had acknowledged paternity and established a social and family relationship with her child. In this situation, the law currently prohibits the natural father from contesting paternity without exception.
Previous case law: challenge impossible in many cases
Karlsruhe had previously approved this regulation. In a fundamental decision from 2003, the judges decided that it was compatible with the Basic Law. In principle, the legislature must allow the biological father “procedural access” to parental rights.
However, if there is a socio-familial bond between the legal father and the child, it is compatible with the constitution to prevent the biological father from challenging legal paternity. The legislature is allowed to make this prioritization without exception in order to ensure the “preservation of an existing social family group”.
The Federal Constitutional Court is now moving away from this position. It writes, “contrary to what has been assumed in previous case law,” biological fathers are “initially bearers of the basic parental rights.” This is designed in such a way that it is linked “to having parental responsibility”. It must therefore be fundamentally possible for biological fathers to “maintain and exercise this responsibility”.
The Bundestag must redesign the law by June 2025
This does not mean that biological fathers will always be able to assert their interests in patchwork constellations in the future. However, the legislature must enable the family courts to consider individual cases: the complainant from Saxony-Anhalt, who was successful in Karlsruhe, had contact with his child even after he was separated from his mother. However, the courts could not take this into account due to the strict standards in the Civil Code.
Karlsruhe demands that the legislature must find an “appropriate balance” between the rights of the biological father, the legal parents and the child by June 30, 2025 at the latest. Until then, the current rules will remain in force, and the complainant will also have to be patient for the time being. The Bundestag has several options for the new regulation: It must at least change the contestation rules so that current or previous socio-familial relationships between the biological father and the child can be taken into account.
The verdict comes in handy for Federal Justice Minister Buschmann
The same applies to his “early and constant efforts to establish legal paternity”. The judges also consider the adjustment necessary because the success of a paternity challenge currently depends too much on timing, the influence of the mother and the youth welfare office and the workload of the family courts. Such a “race” for legal paternity should be avoided.
A more extensive reform of family law would also be constitutionally possible. The Constitutional Court writes that the legislature may extend legal parenthood to more than two people. However, it is ruled out that the legislature will go that far: Federal Justice Minister Marco Buschmann (FDP) said that the federal government wanted to stick to the principle of parenthood of two people.
This statement corresponds to a key points paper from the traffic light coalition on parentage law from January. Buschmann sees the ruling as “tailwind” for his plans to strengthen the rights of biological fathers. “We want to carry out an ambitious reform of parentage law, but we don’t want a revolution,” said Buschmann.