Mockingfather can more easily reclaim maintenance for cuckoo kid

BGH: In the amount of the minimum maintenance, performance does not have to be proven

If bogus fathers demand the support of a cuckoo child from their biological father, they do not have to prove their natural maintenance in euros and cents. At least then, the statutory, listed among others in the Dusseldorf table minimum requirements for a minor child will be credited, the Federal Court (BGH) in Karlsruhe in a decision on Wednesday, November 14, 2018 published decision (Ref .: XII ZB 385/17 ).

Thus, a dummy father from the Hildesheim area can still hope to be reimbursed for maintenance for a cuckoo child. The time-soldier and later employed at a care office man had provided since May 1975 for his "son" maintenance services. He spent almost all of the family income. When the marriage was divorced in 1988, he paid for the child until his education in August 1992 monthly 400 Mark (204.52 euros) maintenance.

When the father had doubts about his paternity at the end of 2014, he and his son had a private paternity report produced. After that, the paternity of the man was "practically excluded". It turned out that the neighbor, an architect who built the house of the couple, is the biological father. The dummy father could challenge the paternity legally successful.

From the biological father, he now demanded the back, he has spent the whole year for the child, a total of 42,400 euros.

The Higher Regional Court (OLG) Celle dismissed the claim for recourse. The dummy father did not even concretely prove whether and in which periods he had at least provided the minimum maintenance for the child. It also lacked information about the relevant income for maintenance calculation. He also did not calculate, despite a pension information on the biological father, which maintenance claims result from it.

Since the applicant did not provide adequate information on maintenance payments and income, the natural father did not have to further specify his alleged lack of efficiency.

By decision of 19 September 2018, the BGH overturned the OLG decision. To be sure, a fake father has to prove what he has actually done over the years of maintenance. However, he does not have to prove the minimum requirement amounts, which are specified in the Dusseldorf table, among others. The quantification of the minimum maintenance amounts is the task of the court, the BGH.

The maintenance claim is transferred to the dummy father at most to the extent to which this maintenance has paid. If, due to the high income of the biological father, there is also a higher maintenance claim than the apparent father has paid, only the child can claim it.

The Higher Regional Court now has to re-examine the maintenance regression of the dummy father as well as the question of whether the biological father is capable of doing anything.

On March 22, 2017, the Federal Supreme Court ruled on a bogus paternity that bogus patrons must also have a statute of limitations in mind in the case of a maintenance detention (Ref .: XII ZB 56/16, JurAgentur report dated April 18, 2017). Thereafter, a period of limitation of three calendar years from the date of determination of paternity applies. In exceptional cases, however, the limitation period can also start to run from the knowledge of the dummy paternity.

If the dummy does not challenge paternity within the statutory two-year period, he will continue to be the legal father of the child, according to the Federal Supreme Court in a further ruling dated 11 January 2012 (Ref .: XII ZR 194/09, JurAgentur Report of 10 February 2012).

However, the dummy father can not force the mother of the "cuckoo child" to provide information about the actual father. Such a right to information intervenes in the private and private sphere of the mother and therefore requires a legal basis, according to the Federal Constitutional Court in a resolution of 24 February 2015 (Ref .: 1 BvR 472/14, JurAgentur Report dated 18 March 2015) , So far, the legislature has not complied. There is only a bill on the entitlement to information against the mother. fle / mwo