Father Custody: The New Custody Law

It has long been difficult for an unmarried father to obtain custody of his child. Since a change in the law in May 2013, this has now become easier. What does that mean in concrete terms for a single father? What changes for the mother? Find out here what the new custody rights mean for father and mother.

Parents who are married to each other automatically have joint custody of their child. It remains in place even after a divorce and can only be revoked upon application and under certain conditions. We have compiled detailed information on the criteria for you in our separate article “Sole Custody” .

The fact that joint custody remains in place even after a divorce basically supports the view of the family courts: Parents should jointly assume custody of their child. Contact with both parents is important for a child and should therefore be supported by mutual agreement.

No automatic custody for unmarried father

Against this background, not all custody arrangements appear up-to-date. Joint custody for unmarried parents does not automatically exist, even if the number of illegitimate births has more than doubled in the last twenty years. If unmarried parents want joint custody, they first have to obtain it – through an official declaration of custody from the youth welfare office or a notary. Joint custody then applies – as in the case of a divorce – but also in the event of a separation.

If unmarried parents do not submit a joint declaration of custody, the mother has sole custody. She has the right to involve the father in joint custody. Family courts usually grant such an application unless the father presents reasons to the contrary.

An unmarried father does not receive automatic custody “without the mother’s doing”. However, he can apply to the family court. For a long time this required the consent of the mother. An unmarried father could not obtain custody against her will.

In a judgment in 2009, the European Court of Human Rights objected to this German custody regulation for unmarried fathers. The Federal Constitutional Court then declared them unconstitutional in 2010.

What does the “new” custody bring to the father?

Finally, on May 19, 2013, a change in custody came into force, making it possible for an unmarried father to be awarded joint custody even against the will of the mother. He should only be denied it if the well-being of the child would be endangered, for example in the case of addiction or violence.

Visitation rights are not the same as custody

Custody rights are independent of visitation rights. While custody is primarily about decision-making powers and responsibilities, visitation rights are intended to ensure personal contact between the child and both parents. It therefore also applies to an unmarried father who does not have custody. Have a look at our article “What does visitation right mean?” and learn more about the distinction between custody and custody.

How does a single father get custody?

In order to be able to obtain custody, an unmarried father applies to the family court for joint custody or – if there are appropriate reasons – for sole custody. The mother then has the opportunity to comment on the application within six weeks.

If the mother does not agree to the application for custody, the reasons given by her are examined and both parents are heard. A decision will then be made as to whether or not the father will have custody. The best interests of the child are always decisive in the decision. Reasons that have nothing to do with the child, such as communication problems among themselves, are not taken into account.

If the mother does not react, a simplified, written procedure is used to decide that the father receives custody – before the general assumption that joint custody is in the best interests of the child.

Criticisms of the new custody for fathers

The new legislation makes it easier for unmarried fathers to assume responsibility for their child, even against the will of the mother. But there are also points of criticism:

  • Still no equal rights for unmarried fathers, since they do not automatically receive custody at birth or when paternity is determined
  • A 6-week period for the statement means that fundamental decisions such as the name of the child or religious affiliation can be made by the mother alone during this time
  • Fast-track court proceedings do not allow a personal picture of the parents
  • The procedure could worsen the already tense relationship between the parents and affect the child’s well-being
  • A court application in itself could represent an inhibition threshold

It remains to be seen whether the change in the law will generally make it easier for a single father to obtain custody of a child against the will of the mother. Ultimately, it is always individual circumstances that justify and decide on custody proceedings.

Similar Posts

Leave a Reply

Your email address will not be published. Required fields are marked *