CHILDREN AND FAMILIES | 03.08.2010

Constitutional court strengthens unmarried fathers' rights

Unmarried dads will soon be able to sue for joint custody

The German constitutional court decided on Tuesday to give unmarried fathers the right to sue for joint custody of their children. The new ruling brings Germany in line with the European Court of Human Rights.

When relationships end with a messy break-up, a disagreement over child custody is often one of the battlegrounds. On Tuesday, the balance in such battles was tipped in favor of unmarried fathers by the German constitutional court in Karlsruhe when it decided to overturn the current German law on child custody for unmarried couples.

The Strasbourg court said Germany's law must be changed

Ute Granold, parliamentary spokesperson on family law for the governing Christian Democratic Union, says that, until now, the mother has had the final say on whether the father has any rights at all. "With unmarried parents, the father must first accept his paternity," she explained. "The mother must agree, and then the second step is going to the youth welfare office to apply for joint custody. And here the mother can either accept or reject the claim."

In future, although the mother will still automatically receive sole custody of the child, the father will have the right to challenge for joint custody in court.

Government support

This change has the enthusiastic backing of the German government, especially the junior coalition partners, the liberal Free Democrats.

Hartfrid Wolff, one of the party's spokesmen on family policy, said, "We in the governing coalition agree that the issue must be about doing what is best for the child, and about raising the status of unmarried fathers, just as the European Court of Human Rights has called for."

The European Court of Human Rights provoked Tuesday's decision last December, when it ruled that Germany's custody rules were contrary to both discrimination laws and Article 8 of the European Human Rights Convention, which protects the right to family life.

Willi Schoene belongs to a campaign for father's rights that has welcomed the ruling as an important victory. The campaign has long argued that mothers often deny the father joint custody because of a personal conflict, and not because they have the interests of the child at heart.

The constitutional court said the child's interests were paramount

Schoene thinks children are too often used as a means to an end in a break-up. "If I was a law-maker I would try to prevent the child from being seen as an economic factor, or a cash cow," he said. "That's what it's all about in the end. In my experience, it's always about power or money."

Extra stress for single parents

The decision effectively means that the legal difference between married and unmarried couples has become smaller once again. But Edith Schwab, of the association for single-parent families, has misgivings about the new ruling. "The custody rights of fathers have been strengthened in that, for the first time, a right to sue has been introduced in Germany," she said. "We have never had that before. Of course we have a few problems with the right to sue, because we know that every lawsuit about custody always causes a massive strain for the single-parent family."

But those in favor of the new ruling believe that it will encourage unmarried fathers to take responsibility for their children. German law-makers are now expected to draft the new law in the autumn.

Author: Ben Knight
Editor: Michael Lawton /dw