Judgment Family bonding takes precedence over physical paternity

BGH: Regulation is constitutional
Social-family ties of a child take precedence over the physical paternity. It is not constitutionally objectionable, according to the law, that a contestation of the legal paternity will be ruled out, as the Federal Supreme Court (BGH) in Karlsruhe ruled in a resolution published on Thursday, 16 November 2017 (Ref .: XII ZB 525/16).

Binding to physical fatherhood. Image: Markus Bormann - fotolia

He rejected the biological father of a child born in October 2013. It lives in Brandenburg with the mother, another man and another child together. The partner of the mother recognized paternity.

The biological father was able to prove his paternity with a descent test and now wanted the legal paternity for themselves. Even the district court and the Higher Regional Court of Brandenburg rejected the lawsuit. According to the law, the challenge of paternity presupposes that there is "no social-family relationship" between the child and his legal father..

This was now joined by the BGH. The corresponding legal regulation is not unconstitutional, according to the Karlsruhe decision of 18 October 2017.

The BGH explained that the legal regulation introduced in 2004 was based on a decision of the Federal Constitutional Court of 9 April 2003 (Ref .: 1 BvR 1493/96). In it the Federal Constitutional Court wanted to give the biological father the possibility of a challenge, if he has a tie to the child, but not the legal father.

This corresponds to the legal regulation that protects existing social-family ties of the child. The European Court of Human Rights (ECtHR) in Strasbourg also approved the German ruling (judgment and JurAgentur report of 22 March 2012, references: 45071/09 and 23338/09, similar to Hungary: judgment and JurAgentur report of 12 March 2012) February 2013, Az .: 48494/06).

In 2013, the Federal Constitutional Court dismissed the former lover after an affair by a married woman; the involvement of the child in the family of the mother and her husband has taken place (decision of 4 December 2013, ref: 1 BvR 1154/10, JurAgentur report dated 23 December 2013). mwo / fle