Highest German court strengthens fathers' custody rights

The constitutional court in Karlsruhe has overturned a German law which automatically grants child custody to mothers when the parents are not married. The ruling makes dual custody more likely in many cases.

Germany's constitutional court has strengthened the rights of unmarried fathers seeking custody or partial custody of their children. The Karlsruhe-based court on Tuesday announced that mothers would no longer be permitted to automatically dismiss paternal custody claims in cases where the parents were not married.

Custody courts must now seek solutions involving joint custody between both parents, provided such an arrangement is in the children's best interest.

The system used up until now was deemed unconstitutional by the court, after a complaint from a disgruntled father.

This decision follows in the footsteps of one already reached by the European Court of Human Rights last December. The Strasbourg-based institution ruled that Germany's now-defunct law discriminated against fathers and contravened a European directive to sustain and honor family life.

The Strasbourg decision was reached after a German man in his forties took his case to the court, seeking joint custody of his teenage daughter. He had exhausted his options within the German legal system.

Seven-year itch

In January 2003, Germany's constitutional court made the opposite decision, defending the veto-power effectively allocated to unmarried mothers in custody cases.

Under that rule, single fathers only had a shot at joint custody of their children with the mother's consent, although they were legally obliged to pay child support regardless of the custody situation.

The court said the rule was still up-to-date and in keeping with the German constitution, but warned in its seven-year-old ruling that it would be wise to keep an eye on societal developments in this area.

Now, the court says that unmarried fathers should at least have the right to challenge for custody of their children in court, should the mother refuse them access.

The court referred to a new study which they said showed that a notable number of mothers would simply refuse joint custody "because they didn't want to share the ancestral right of custody with the father of their child."

(Published by DW-World – August 3, 2010)

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