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Dr Kerstin Niethammer-Jürgens
According to s 1626a of the German Civil Code (BGB) sole custody is automatically awarded to the mother unless the child is either born to married parents, the parents get married after the child's birth, or both parents declare their intention to exercise joint custody.
There is no regulation that automatically awards sole custody to the father.
The regulation in s 1626a of the BGB strengthens the position of an unmarried mother: without her consent there will be no decision for joint custody with the child's father who she is not married to. Her declarations to accept both sole and joint custody have to be expressed by herself; they cannot be substituted by declarations of a legal representative or guardian or by court decision.
Sole custody can only be withdrawn under the conditions of s 1666 of the BGB.
In most cases, however, there is no substitute for the mother's denied approval of the father's application for custody, even if her behaviour is objectively malicious.
This regulation had long been disputed in legal literature before the Federal Constitutional Court decided on 29 January 2003 that s 1626a of para 2 of the BGB was not violating the German Constitution. Prior to this decision, the regional appeal courts had denied decisions overriding unmarried mothers' denials of approval following s 1626a of the BGB, and these proceedings were declared constitutional.
That was in 2003 and has now changed: Following a decision of the European Court of Human Rights from 3 December 2009 (see Zaunegger v Germany, Appl. No 22028/04) the Federal Constitutional Court of Germany declared s 1626a, BGB to be unconstitutional on 21 July 2010, and called upon the German legislative bodies to decide on a new regulation (see 1 B v R 420/09).
The European Court of Human Rights had decided that it was not in line with the prohibition of discrimination in Arts 14 and 8 of the European Convention on Human Rights to generally ban case-by-case review related to s 1626a of the BGB.
In its reasoning, the court declared that such a ban was disproportionate in regard to the aim of protecting the interests of extramarital children. The recent European developments and the increasing number of unmarried parents had to be taken into consideration. Joint custody did not contradict the best interests of the child only because the mother objected to it.
Thus, the Federal Constitutional Court amended its decision from 2003 and declared that the regulations in s 1626a were violating the provisions of Arts 6 and 2 of the German Constitution. It held that while the father's parental rights were not violated by the provisions of s 1626a of the BGB alone, it constitutes a severe breach of the father's parental rights that he is denied any exertion of influence through judicial review once the mother denied his application for joint custody or sole custody.
It also held that the family courts shall provisionally award full or partial joint custody upon application by one parent as far as it deems it beneficial for the best interests of the child until s 1626a of the BGB is reformulated.
The court further held that the father shall - upon application - be awarded sole custody if joint custody does not come into consideration and if this is in the best interests of the child. This regulation will be in place until s 1626a of the BGB is reformulated.
Therefore, it is now the German legislative bodies' duty to formulate a regulation in accordance with the prohibition of discrimination in the European Convention on Human Rights, Arts 14 and 8, and the German Constitution.
Meanwhile, there have been several decisions implementing the provisional regulation of the German Federal Constitutional Court since the German legislative bodies have not formulated a new regulation in accordance with the described decision of the German Federal Constitutional Court.
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