Stronger rights for biological fathers

The complainant is the natural father of a child born out of wedlock in 2020. The complainant had a relationship with the child's mother and also lived with her in the same household. After the mother separated from the complainant, he continued to have contact with his child. The mother entered into a new relationship. After the complainant filed an application to establish his paternity, the mother's new partner acknowledged paternity for the child with her consent and thus became the child's legal father.

In the contestation proceedings, the Higher Regional Court at second instance dismissed the complainant's application for a declaration that he and not the legal father was the father of the child as unfounded. The complainant's challenge to paternity failed due to the now existing social-familial relationship between the mother's new partner and legal father and the child. With his constitutional complaint, the complainant alleges a violation of his parental rights guaranteed in Art. 6 para. 2 sentence 1 GG. § Section 1600 (2) and (3) BGB in its application by the court makes it impossible for him as the natural father to obtain legal paternity for the child.

In the ruling announced on April 9, 2024, the First Senate of the Federal Constitutional Court ruled that the statutory provision on the right of the natural father to contest the legal paternity of another man for his child is incompatible with the Basic Law. It does not take sufficient account of the basic parental rights of natural fathers. They are parents within the meaning of Art. 6 para. 2 sentence 1 of the German Basic Law (GG) and can invoke the basic parental right in the same way as the legal parents of the child.
The basic parental right must be defined by the legislator. It can - in deviation from the previous law in the German Civil Code (BGB) - provide for the legal parenthood of the biological father alongside the mother and the legal father. If, on the other hand, the legislator maintains a restriction of legal parenthood to two parents, a sufficiently effective procedure must be available in favor of the natural father that enables him to become the legal father of his child instead of the previous legal father. The current law does not meet the latter requirement, above all because it does not allow an existing or previous social-familial relationship between the child and its biological father or the latter's previous efforts to establish legal paternity to be taken into account.
The provision in Section 1600 (2), (3) sentence 1 of the German Civil Code on the contestation of paternity, which has been declared incompatible with the Basic Law, will remain in force until a new regulation is passed by the legislator, at the latest until June 30, 2025.
The detailed judgment can be found on the website of the Federal Constitutional Court.