The legal father must actually be the father for the child

OLG Hamm: social-family relationship required
Hamm (jur). If a man recognizes the legal paternity for a non-native child, he must also build a social-family relationship. Otherwise, the child's biological father can successfully challenge the legal paternity of the man, the Higher Regional Court (OLG) Hamm decided in a decision announced on Friday, April 8, 2016 (Ref .: 12 UF 244/14). A social-family relationship can usually be assumed when the legal father is married to the mother or lives with the child for a longer period of time in a domestic community and thus assumes responsibility.

The decisive paternity dispute was about a child born in 2011. The 24-year-old native of Guinea came to Germany in 2010 as an asylum seeker. From an illegitimate relationship with the also originating from Guinea applicant came out the child.

(Image: poplasen / fotolia.com)

However, the legal paternity for the child was taken over by a 50-year-old German, who does not live with his mother but with another woman. The mother and he live in Münster and have made a joint custody order for the boy. The legal father also pays alimony and has regular contact with the child.

The physical father living in Dortmund challenged the legal paternity of the other man. The recognition of paternity was only for reasons of residency, so his objection.

Mother and legal father considered the paternity challenge not justified. They would live a "social-family relationship" with the child. The legal father is thus also a "real" father.

However, in its order of 11 February 2016, the OLG upheld the claimant. The biological father is to be regarded as a father for the child. A social-family relationship protected by law only exists if the legal father bears actual responsibility for the child, according to the Hammer Richter. This is usually the case when he is married to the mother or lives with the child for a long time in domestic community. Both are not the case here.

It is true that outside of these rule presumptions a paternity challenge can be ruled out if the legal father maintains a "protective, socially beneficial relationship" with the child. However, this only results from the perception of "typical parental rights and obligations of the legal father".

This too can not be determined by the legal father. The joint custody and maintenance payments were not enough. For example, the mother now lives together with another man, the legal father had also been unable to name any currently provided care services for the child. It is not enough for the boy to say "Daddy" to him because he also describes the mother's new partner like that. (FLE)