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Dr Kerstin Niethammer-Jürgens
The German Parliament passed on 31 January 2013 the law reforming legal responsibility of the unmarried parents - the law will soon enter into force.
According to the new rules, the mother still has sole custody with the birth of the child.
The mother can still agree on joint parental responsibility by declaration to the youth authorities.
Does she not do so, the father has a choice: he can first go to the youth office and try to reach an agreement with the mother. But going to the youth welfare office is not required.
The father is now able to go to the Family Court directly and apply for a decision by the court on joint custody, s 1626a, German Civil Code (new).
The court proceedings are regulated by a new provision in the Family Procedure Code adding s 155a, FamFG (‘Procedures of transmission of parental authority').
Within the judicial process the court gives the mother the opportunity to comment on the request of the father. The deadline of this comment ends at least 6 weeks after the birth of the child. If the mother does not react or bring up arguments which do not have anything to do with the child, the Family Court rules in an accelerated and simplified procedure in which a hearing of the Youth Office and a personal interview (hearing) of the parents are not necessary.
In exceptional cases, the Family Court can ask the parties for a hearing.
The ruling transfers shared parental responsibility to both parents, if the transfer is not contrary to the child's welfare (negative child welfare check). This is provided in a new paragraph of the German Civil Code (s 1626a, Sec. 2).
In cases where the Family Court gets to know about reasons that speak against a joint custody of the parents he has to proceed within accelerated proceedings (hearing of the case within 1-month).
According to the new law the unmarried father is also able to get access to sole custody without the consent of the mother. This is the case if: a) the parents are separated; b) the mother has sole custody; and c) that joint custody is not considered to be in the welfare of the child and it is expected that the transfer of sole custody to the father is in the child's best interests, s 1671, Sec. 2, No 2 German Civil Code.
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