Determination of paternity

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Germany

The legal basis for judicial determination of paternity is § 1600d BGB .

The application to the district court can be made by the child, the mother or the man who considers himself the biological father . As far as the child is a minor, the application is often by the youth welfare office as counsel asked the child. This is a special form of legal representation. However, only the mother can submit an application for assistance from the youth welfare office (see beneficiaries according to § 1713 BGB). A possible biological father who is not yet a legal father cannot apply for assistance from the youth welfare office because the eligibility requirements of § 1713 BGB are missing. The possible biological father, who does not yet have legal paternity and who would like to have his paternity determined by himself, can first have a unilateral declaration of paternity at the registry office or a notary from the youth welfare office (free of charge). This acknowledgment of paternity is then temporarily ineffective or invalid, but the possible father has initially fulfilled his part. Now it is the mother’s turn - she should now agree to fatherhood. As soon as the potential father has issued a unilateral acknowledgment of paternity, the youth welfare office will contact the mother and ask her to give the necessary consent to paternity. If the mother remains inactive (there are no statutory deadlines), it is advisable to contact the general social service or the youth welfare office after approx. Two to three weeks to discuss further (legal) steps if necessary. The father then has the option of having his paternity determined by a court. For this purpose, an application according to § 1600d BGB must be submitted to the responsible family court.

If the child is of legal age and neither the child nor the mother nor the biological father are interested in the determination of paternity, no one else can force them (in court) to do so. This leads in particular to the fact that in this case a pseudo father cannot enforce his maintenance recourse claims against the biological father.

Demarcation

Instead of a judicial determination of paternity, a voluntary acknowledgment of paternity can take place. The negative determination of paternity is called paternity contestation. It is also a family court procedure. The parentage verification procedure has also been in place since 2008 .

historical development

Evidence of paternity is regularly provided by a parentage certificate. This is a scientific procedure with which the relationship between two people - usually the father-child relationship - is to be determined. For this purpose, blood or oral mucosa samples are taken from those involved and a genetic analysis is carried out.

In the ordinance on the harmonization of family law provisions of February 6, 1943 (RGBl. IS 80), provisions were introduced in Germany for the first time in which those involved in ancestry processes were required to tolerate “ hereditary and racial ” examinations, especially blood group reports.

This provision, the content of which was largely confirmed after the collapse of the Nazi regime by ordinance of the Central Justice Office for the British Zone of June 17, 1947 (VOBl. For the British Zone 1947, p. 93), can be clearly seen that provisions that were originally created for “racial hygiene” purposes could be reinterpreted into arguments to assert children's interests, especially since the advances in medical science now also make it possible to establish paternity on a biological basis.

In the 1930s, the Reichsgericht (Reichsgericht), without there being any legal basis, considered a parentage lawsuit to establish “real” biological paternity to be admissible. Previously, based on the text of the German Civil Code (BGB) at the time, there was only one maintenance claim with incidentally established "number paternity". This perspective, which is progressive from today's point of view, was justified at the time with the protection of “ German blood ” (RGZ 160, 392 ff). Because of the result, which was women-friendly despite the ideological justification, the Federal Court of Justice continued to allow such parentage lawsuits after the Second World War (BGH, judgment of April 28, 1952; BGHZ 5,385 = NJW 1952, 780), which in view of the lack of a legal basis until June 30, 1970 For the binding nature of such decisions could lead to the curious result that the parentage judgment and the separate “number fatherhood” judgment contradicted each other. These curious legal consequences were only removed by the law on illegality that came into force on July 1, 1970 ; since then, a judicial determination has been effective for and against everything ( § 640h ZPO).

The GDR behaved conservatively despite its progressive claims with regard to family law. Until the Family Code of the GDR came into force in 1966, the status action to establish paternity was inadmissible. Only the maintenance action was admissible, but it had no determinative effect. In particular, the Supreme Court of the GDR stood out in that it ruled in 1956 that the action for a declaration of paternity was inadmissible for the courts of the GDR. In the run-up to this ruling, there had been individual divergent opinions from the lower courts, which - as happened in what was then West Germany - considered the declaratory action to be admissible. A corrective was created by Art. 8 I EGFGB-GDR, which gave the maintenance judgments issued before 1966 the effect of a determination of paternity inter omnes .

Legal consequences of establishing paternity

Finding that a person is the father of a child has numerous legal consequences.

Jurisdiction

In principle, the district court ( family court ) at the child's place of residence ( Section 170 FamFG) is responsible for actions to establish paternity and contest paternity . Every youth welfare office is responsible for notarizing an acknowledgment of paternity ( Section 87e of Book VIII of the Social Code ).

statistical data

For the years 1991 to 2005 the Federal Statistical Office reports 104,483 to 136,029 paternity determinations annually. In 93,116 to 131,908 of these cases, paternity was determined by voluntary recognition, in 7,997 to 8,619 by court decision. Paternity could not be established in 3,456 to 10,571 cases.

See also

literature

  • Brückner, Christoph: The enforceability of the child's right to information against his mother for naming the biological father. An investigation with the inclusion of comparative law ... aspects and damage law consequences . Roderer, 2003. ISBN 3-89783-408-1 .
  • Helms, Tobias: The determination of biological descent. A comparative study of German and French law . Duncker & Humblot, Berlin 1999. ISBN 3-428-09795-5 .
  • Muscheler / Bloch: The right to knowledge of genetic descent and the right of the child against the mother to name the biological father . FPR 2002, 339.
  • Sonja Orel: Secret paternity tests. Prospects for a reform of paternity examination options . Herbert Utz Verlag, Munich 2007, ISBN 3-8316-0698-6 .

Web links

Individual evidence

  1. ↑ BGH, file number: XII ZR 238/91 (Zweibrücken), February 17, 1993, revision judgment claim of the pay father against the “real” father of a illegitimate child
  2. ↑ OLG Karlsruhe from January 31, 2003, 5 WF 174/02 maintenance recourse action by the pseudo father against the suspected biological father
  3. ↑ destatis.de: Child and youth welfare statistics - care, guardian, assistance, care permit 2011
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