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Germany: Custody for Out-of-Wedlock Children

(Aug. 20, 2010) On July 21, 2010, Germany's Federal Constitutional Court (FCC, Bundesverfassungsgericht) issued a decision that strengthened the rights of fathers of out-of-wedlock children (Docket No. 1 BvR 420/09 (July 21, 2010), available at
). The decision declares unconstitutional sections 1626a and 1672 of the Civil Code (repromulgated Jan. 2, 2002 BUNDESGESETZBLATT I at 122, available in English at
) for violating the constitutional guarantee of family life (Basic Law for the Federal Republic of Germany, art. 6). According to the two sections, the mother of an out-of-wedlock child has custody and joint custody can be established only with the consent of the mother.

Sections 1626a and 1672 of the Civil Code were enacted in 1998, in the course of a reform of the status of out-of-wedlock children. In 2003, the FCC issued a decision that upheld these provisions as being based on reasonable assumptions about domestic relations by the legislature, but under the proviso that the legislature should collect information on the issue and the change the law accordingly, if warranted. In the decision of July 21, 2010, the FCC held that empirical data had shown in the meantime that fathers often are excluded from custody against their wishes under the provision, and that the time for changing the law had come. Moreover, on December 3, 2009 the European Court of Human Rights had ruled (Zaunegger v. Germany, Application No. 22028/04, available at
) that the German provisions violated articles 8 (protection of the family) and 14 (protection against discrimination) of the European Human Rights Convention (The European Convention on Human Rights, Nov. 4, 1950, 213 U.N.T.S. 221, available at

In the July 2010 decision, the FCC instructed the legislature to reform the unconstitutional provisions in a manner that would be reconcilable with the constitutional rights of out-of-wedlock fathers and ordered that until then the existing provisions should be applied in conformity with the Court's holdings. (See also Press Release, FCC, Ausschluss des Vaters eines nichtehelichen Kindes von der elterlichen Sorge bei Zustimmungsverweigerung der Mutter verfassungswidrig (Aug. 3, 2010),