Father's National Coalition - FNC

 
A Report from Germany

by Thomas Sochart
05/29/2003

www.vaeter-aktuell.de
Redaktion

 
The German family law makes the distinction between "Sorgerecht" and "Umgangsrecht".
Sorgerecht: right of care and education (custody, responsibility)
Umgangsrecht: right of contact to ones children. In colloquial speech instead of "contact right" the term the "visitation rights of the father“ is used.
In the Basic Law rights and obligations are assigned to parents. Children’s rights are not mentioned in the Basic Law.

The situation at present is:

  • Right of care (custody) is the right and the obligation of parents. In the case of doubt the right and the obligation of the mother.
  • Right of contact / visitation right is as a rule a right of the father.
We demand:
  • Custody should be the obligation of both parents.
  • Children have the right of parental care.
Basic Law article 6 paragraph 2 should be altered
(Grundgesetz GG)

Basic Law article 6 paragraph 2 reads:
(2) Care and education of the children are the natural right of parents and their foremost obligation....

Our new suggestion:
(2) Children have the right of parental care and education. Parents have the joint responsibility to provide care for their children. ...
§ 1626a German Civil Code should be deleated
(Bürgerliches Gesetzbuch BGB)

§1626a of the German Civil Code reads:

(1) If parents are not married with each other at the time of birth of a child, dual custody is granted, if they
1. declare that they want to take over the custody together (custody declaration), or
2. marry each other.
(2) Otherwise the mother has the exclusive parental care (custody).
In this year, there were two decisions of the Federal Constitutional Court in this regard:
 

The ruling of the Federal Constitutional Court of 01/29/2003

The grievances of two fathers were rejected
Unmarried mothers have priority with the custody

If the mother does not agree, unmarried fathers do not have a chance to receive the custody for their children. This was confirmed by the Federal Constitutional Court on Wednesday. In opinion of the first senate under the chairmanship of the president of the court, Hans-Jürgen Papier the "Veto right“ of the mother serves to protect the child. The legislator assumes that a not-married mother refuses herself to the desire of the father only then, "if she has serious reasons for it, which serve the childs well-being". The fact that she could abuse her veto power as a position of power opposite the father, did not subordinate the Federal Constitutional Court.
It was said: "Pregnancy and birth obtain a close relationship of the child with the mother. The allocation of the child to the mother is essentially justified for reasons of the childs well-being (Kindeswohl) and regarding unequivocal legal unity (Rechtssicherheit)." -  "The legal security ensures / justifies this assumption."
According to a study quoted by the court 50% of single living mothers in the western federal states half a year after the birth of their children do not have relationship to the child fathers anymore. In the eastern federal states the number is about 35%. According to the Federal Constitutional Court the number of not-married partnerships increased from 137.000 in the year 1972 to approximately 2.1 million in the year 2001.
The Federal Constitutional Court assumes that an unmarried mother refuses itself to the desire of the father only then, "if she has for it serious reasons, which are carried by the keeping of the childs well-being." The judges obligated the German Bundestag to observe the further development exactly. If a "considerable number" of mothers should actually abuse their position, the Federal Constitutional Court will possibly arrange a judicial individual case examination.
Statistics from 2001:
  • 2,1 million not-married partnerships in Germany. In these families about 821,000 children and young person live.
  • 2,12 million children under age live together with only one parent.
The ruling of the Federal Constitutional Court of 04/29/2003

existing regulation:

The not-married father has a right in a photo of his child once a year. Even this minimum requirement can hardly be called in on the course of law. The law does not regulate, how large the photo must be. (illegitimate child)
The recent decision of the Federal Constitutional Court:

Natural / Physical fathers may see their children also against the will of the mothers, if it serves well-being of the child.

Feminists, Lawyer interior federation (Juristinnenbund DJB), and the Federation alone educating mothers and fathers (Verband allein Erziehender Mütter und Väter VAMV) support the status quo to remain. Reason for it is the "social peace" in a family. The social peace and order should not be allowed to be destroyed, by a thirdparty who claims to be the natural father, therefore damaging the child-parent relationship. The social peace an order is not to be disturbed by the fact to enable a third person to stress the paternity. The relations of (social-)parents and children lastingly impair. The first senate views the situation similarly. Also in the future a man is not to in-complain himself in an existing partnership or a marriage and be able its paternity judicial clarify to let. The biological father does not have priority opposite the social father. There is not much hope for fathers being able to gain access to their children via the law. The Federal Constitutional Court hinge the possibility to gain access to the child (handling right - Umgangsrecht) on two conditions: The relationship must serve the well-being of the child and the father must have assumed responsibility for the child for a period of time. 
Whether this regulation will be interspersable in practice, must be waited for. 
Further reasons, why parents who do not marry, don't submit common custody declarations:
  • Dislike against the pervasive tide of forms
  • State listlessness of the inhabitants
  • Mothers do not want to give up their privilege voluntarily.
  • Youth offices advise mothers over the "disadvantages" of a common custody declaration. Woman employees of the youth welfare office explained the mother not to sign the common custody declaration. In case of conflict, she will have the better cards.
The number of the delivered common custody declarations is small.
Many fathers feel back-gradated to "paying fathers". Vocational careers fail. Depressions, consumption of alcohol, unemployment and suicide with men after separation or divorce can be the results. We have accululated up to now 160 newspaper articles over suicide in connection with separation or divorce and custody. In June 2002 a delegation of the association of "Fathers awaking for children e.V." (Väteraufbruch für Kinder e.V. VAFK) handed this collection of newspaper articles to the Federal Department of Justice BMJ. Separation or divorce creates social disorder.
  • If judicially specified regulations of contact are not kept, there is no judicial assistance.

    • .
  • Procedure-cost-assistance / Legal aid is frequently granted to women. Legal aid is seldom granted to men.

    • .
  • Attorneys are paid proportionally after "value in litigation". The material value in litigation for a child is low set. Interest shown of the attorneys is often minimal. Additional letters must be paid and additionally often they have a provocative character. In accordance with the laid down cost structure the value of litigation fregarding a child is low. In reality the potential for conflict high. (Get-eveything or nearly-nothing decisions)

    • .
  • Controversy rewards attorneys and often mothers. If parents cannot agree, as a rule the mother the exclusive custody is awarded. When parents can not agree on matters concerning acess and custody of children, the courts rule in general that the mother gains sole custody of the child. The "debt principle" with divorces was replaced 1977 by the "disorder principle".
Court decisions are nearly irreversieble. They can be changed only in rare exceptional cases. The judgement can only be changed, if important reasons are present. From the view of the legislator There are important reasons only in rare exceptional cases. Example: The child is 3 years old. The father receives a handling right each second Sunday in the month. This judgement has a validity period of 15 years. (§1696 BGB and Palandt-Comment on §1696).
Maintenance payments however are adapted according to a table, if the income of the father changes. The maintenance table for child maintenance (Duesseldorfer table) is
increased every 2 years. The willingness to pay child maintenance of separated-out fathers is small.
The problem with separation or divorce is the common children. A divorced man is treated according to tax law like a single man. He must pay more taxes and additionally child maintenance and spouse maintenance. Separation or divorce leads to financial problems. The marriage also without children brings tax benefits.
The marriage belongs only for each second Federal citizen to life planning. From the 20 to 45-years old explained 49.4% with an inquiry, the wedding belong to for it compellingly as large loving. On the other hand 49.9% considers the marriage certificate unnecessary. The fact that one necessarily finds above all East German does not have to marry, i.e. above average 64%. The principal reasons for marrying are the large love (54.7%) and the desire to have a family (34,3%)
§ 1592 BGB is to be changed

§ 1592 of the German Civil Code reads:
Fatherhood
Father of a child is the man, 
1. who is married with the mother of the child at the time of the birth,
2. who accept the paternity (acknowledgement of paternity) .or
3. whose paternity is judicially determined by § 1600d. (because of money) 

Our new suggestion:
Father of a child is the man, who begot the child.
 

 
Rhetorik
Woman associations state: "Men want to out-play their power with the common custody." 
Man associations answer: "Women want to out-play their power with the exclusive custody."

 
Our Demands

Under the work title Father's National Coalition (FNC) we arranged our demands in the Internet.

www.vaeter-aktuell.de/FNC

Our demands address themselves
- to the parents
- to the youth office (Jugendamt)
- to the attorneys
- to the consultants in family-legal affairs
- to the judges
- to the legislator  --> here most demands
- to the fathers
  • Children's rights must be included in the Basic Law.
  • Children's rights must be incorporated strengthened in the German Civil Code.
  • Mediation is to be made before a court hearing
  • The mediator must be allowed as a witness before the court.
  • With family-legal procedures a "lawyer of the child" is to be consulted.
  • Judicial regulations exclusive custody are to be able to be examined for request after 2 years.
  • Judicial regulations handling right are to be able to be examined for request after 2 years.
  • Also "old cases" are to become certified the examination.
  • A removal with child starting from 100 km far away needs the consent of the other parent.
  • Income tax class 3 for all, which have to supply a child. Also for not married family fathers and for parents, who pay maintenance. Not only for the married.
German Civil Code §§ 11, 1592, 1626 - 1632, 1666, 1671, 1672, 1674, 1684 - 1687, 1696 must be revised and summarized.

§1626a German Civil Code must be deleted
§1696 German Civil Code is to be applied also to "old cases".

This report:
www.vaeter-aktuell.de/international-page/A_Report_from_Germany_DE.htm
www.vaeter-aktuell.de/international-page/A_Report_from_Germany_EN.htm
www.vaeter-aktuell.de/international-page/A_Report_from_Germany_DE_EN.htm
 

Some Words, hardly to translate:
 
Sorgerecht Right of care and education (custody, responsibility)
Umgangsrecht Right of contact,  visitation rights of the father
Rechtssicherheit unequivocal legal unity
Bundestag Bundestag
Kindergarten Kindergarten

Thomas Sochart