Judgment of the Federal Constitutional Court of April 9, 2024, Case No.: 1 BvR 2017/21
The Federal Constitutional Court has strengthened the rights of biological fathers with a ruling dated April 9, 2024 (Case No.: 1 BvR 2017/21). With this landmark decision, the constitutional judges opened the door for biological fathers to be recognized as legal fathers. Thus, the constitutional complaint of a biological father who has been fighting for years to be recognized as the legal father of his son was at least partially successful.
Family law has so far stipulated that a biological father cannot challenge the legal paternity of another man for his child. This regulation is incompatible with the Basic Law, as it does not sufficiently consider the fundamental parental right of biological fathers, the Federal Constitutional Court has now decided. Biological fathers must be able to invoke their fundamental parental right under the Basic Law, just like legal parents, according to the Federal Constitutional Court. This has significantly increased the chances of biological fathers to legal paternity with all the associated legal consequences, according to MTR Legal Attorneys, which also advises on family law.
New Regulations No Later Than June 30, 2025
Following the decision of the Federal Constitutional Court, the legislature is challenged to find a new regulation by no later than June 30, 2025. So far, the contestation options for the biological father are regulated in § 1600 BGB. According to this, the contestation of paternity by the biological father is only possible if there is no social-family relationship between the child and the legal father. This is not sufficient, the constitutional judges made clear. They also introduced the possibility of extending legal parenthood to three parents – the mother, the legal father, and the biological father.
However, if the legislature maintains the restriction to two legal parents, an adequately effective procedure must be available to the biological father that enables him to become the legal father of the child instead of the current legal father. The current law is insufficient here, especially because it does not consider existing or former social-family relationships of the child with its biological father and the latter’s efforts to achieve legal paternity, according to the First Senate of the Federal Constitutional Court.
Biological Father with Close Ties to the Child
In the underlying case, the biological father had a close social relationship with his now three-year-old son. The relationship with the mother broke down shortly after the birth of the non-marital child. However, the man wanted not only a right of access to his son but also sought recognition of his paternity and filed an appropriate application. However, the mother thwarted this by registering her new partner as the father, who thus became the legal father.
Federal Constitutional Court Overturns Decision of the OLG Naumburg
The biological father did not give up and declared the contestation of paternity – however, without success. The OLG Naumburg stated that the biological father could not contest paternity since there was already a social-family relationship between the child and the legal father. The biological father then filed a constitutional complaint and was partially successful. The Federal Constitutional Court ruled that the decision of the OLG Naumburg violated the biological father’s fundamental parental right and referred the case back to the OLG. Here, the biological father now has the option to apply for the suspension of the proceedings until a statutory new regulation is enacted.
With the recognition of legal paternity, important rights and obligations are associated. For example, the parents then have joint custody of the child. The father then also has a say in important decisions and is no longer reduced to merely having the right of access.
As for the possibility proposed by the Federal Constitutional Court with two legal fathers, it is unlikely to materialize. Although the Federal Ministry of Justice had already announced before the hearing that it intended to strengthen the rights of biological fathers, it will probably remain at two legal parents.
MTR Legal Attorneys advises on paternity and other family law issues.
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