Unmarried fathers in Germany promised greater custody rights

Wed, Aug 4, 2010, 01:00

THE GERMAN government has promised to strengthen the custody rights of unmarried fathers after the constitutional court ruled that existing provisions violate their basic rights.

Currently, unmarried German fathers can only obtain joint custody of their child if the mother agrees.

“Lawmakers thus place the parental rights of the father disproportionately below those of the mother, without it necessarily ensuring the child’s wellbeing and without the possibility of a court examination of the reasons,” the court said in its ruling.

The case was brought by a man who was denied custody of his son, born in 1998, by the child’s mother, with whom he split during the pregnancy. The man sees his son regularly but has no custody rights; courts at local and state level both rejected the case.

The court asked the government to address problems with the law in 2003; now it has asked family courts to award joint custody automatically to unmarried fathers until new legislation is passed ending discrimination against them.

Berlin has already begun drafting new legislation in anticipation of the ruling, after the European Court of Human Rights ruled last year that the custody laws breached anti-discrimination laws and the European Convention on Human Rights.

“We want a modern custody law that reflects the reality of society and brings parental rights for unmarried fathers in line with the constitutional requirements,” said Sabine Leutheusser-Schnarrenberger, Berlin’s justice minister.

Germany has 8.2 million families with children, according to official figures, with almost a fifth being raised solely by the mother. The number of unmarried mothers varies widely by region: some 58 per cent of mothers in eastern states are unmarried while in western regions, the average is 26 per cent.

Some 1.5 million men are likely to be affected by the ruling, according to a lobby group for unmarried fathers. In total, some 350,000 children are affected by the separation of their parents annually, with sole custody awarded in every second case to the mother.

A justice ministry survey of lawyers and social workers found that, in 80 to 90 per cent of such cases, the reasons for refusing the father custody were not directly related to the welfare of the child.

“[The mother] wants to decide alone or have nothing to do with the father,” said the report, seen by the Frankfurter Allgemeine newspaper.

The looming legislation is likely to cause friction in Chancellor Merkel’s coalition government. The justice minister, from the liberal Free Democrats (FDP) junior coalition partner, is anxious to give both parents automatic custody rights from birth, regardless of marriage status. Under this proposal, a mother who wants custody withdrawn from the father would then have to present her case in court.

The Bavarian Christian Social Union (CSU), sister party to Dr Merkel’s own CDU, has dismissed the suggestion.