Zaunegger case

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The Zaunegger v Germany case is a case decided in 2009 on an individual complaint to the European Court of Human Rights , which concerned joint parental custody of illegitimate children. It led to a change in the law in German and Austrian family law.

Proceedings before the ECHR

Initial decisions by German courts

The applicant was the father of a daughter born out of wedlock in 1995. He lived with the child's mother and daughter until they separated in 1998. Subsequently, the child initially lived with the father, in 2001 it moved to the mother.

The mother had sole custody. Access rights had been agreed with the father since 2001 .

In June 2003, the father applied for a court order of joint custody after the mother did not agree to a joint custody declaration.

In its judgment of January 29, 2003, the Federal Constitutional Court decided in another case that the possibility of joint custody made available to parents of illegitimate children by Section 1626a, Paragraph 1, No. 1 of the German Civil Code was based on a regulatory concept for parental custody that With regard to child welfare considerations, the parents' consensus on joint custody is a prerequisite. In the best interests of the child, shared care presupposes that both parents are willing to take responsibility for the child. If there is a lack of this and if the parents are neither willing nor able to cooperate, joint care for the child could run counter to the child's best interests. There are currently no indications that the parental rights of the father of an illegitimate child under Article 6 (2) of the Basic Law are not sufficiently taken into account. In view of the differences in the living conditions into which illegitimate children are born, it is constitutional to assign the illegitimate child to the mother when it is born. Because illegitimate children would not only be born in intact illegitimate communities, but also still in the context of fleeting and unstable relationships. A common concern against the will of a parent would carry the risk that conflicts would be carried out on the child's back from the outset.

Based on this case law, the action was dismissed by the Cologne District Court, while the appeal lodged with the Cologne Higher Regional Court was rejected. There is no legal basis for the judicial order of joint parental custody for unmarried couples without the consent of the sole custodial parent. In particular, the version of § 1626a BGB valid at that time presupposed the consent of the mother or the marriage of both parents for the complainant to participate in parental custody.

A constitutional complaint lodged by the complainant against the decision of the district court and the higher regional court was not accepted for decision in December 2003.

Decision of the ECHR

On the one hand, the complainant complained of unequal treatment towards the mother, since he was unable to obtain joint custody without the mother's consent. On the other hand, he criticized unequal treatment of married or divorced fathers who could retain joint custody after divorce or separation from the mother.

The European Court of Human Rights examined the exclusion of a judicial review of individual cases of custody at the expense of the complainant in his capacity as the father of a child born out of wedlock against the standards of Article 14 ( prohibition of discrimination ) and Article 8 of the European Convention on Human Rights ( right to respect for private and family life ).

With a judgment of December 3, 2009, the Court of Justice came to the conclusion that German law does not provide for a judicial review of the question of whether the allocation of joint parental custody to both parents would serve the best interests of the child . The decisive point is that joint custody against the will of the mother of a child born out of wedlock is prima facie viewed as not serving the best interests of the child. This resulted in unjustified unequal treatment of the complainant. Since the complainant has continued to look after his daughter since the separation, the fundamental exclusion of a judicial review of the original assignment of sole care to the mother is not proportionate to the objective pursued, namely the protection of the well-being of a child born out of wedlock. Consequently, Article 14, read in conjunction with Article 8 of the ECHR, was infringed in the present case.

Legislative consequences

Germany

Jörg-Uwe Hahn , Justice Minister of the State of Hesse , welcomed the decision of the ECHR as a “good day for fathers”. Federal Justice Minister Sabine Leutheusser-Schnarrenberger pointed out on the same day that the court had “not assessed the abstract legal situation, but only an individual case”, but that legislative changes were being debated .

With a decision of July 21, 2010 the Federal Constitutional Court agreed with the legal opinion of the ECHR. § 1626a Abs. 1 Nr. 1 and § 1672 Abs. 1 BGB in the version of the law for the reform of the child law violate the parental rights of the father of an illegitimate child from Art. 6 Abs. 2 GG, if he without the consent of the mother generally by the Caring for his child was excluded and could not have a judicial review whether it was appropriate for reasons of the child's best interests to allow him and the mother to care for his child or to give him sole care for the child instead of the mother. Until a new legal regulation comes into force, § 1626a BGB is to be applied with the stipulation that the family court transfers parental custody or part of parental custody jointly to the parents at the request of one of the parents, insofar as it can be expected that this corresponds to the best interests of the child. Section 1672 BGB is to be applied with the proviso that the family court transfers parental custody or part of the parental custody to the father at the request of a parent, insofar as joint parental custody is out of the question and it is to be expected that this corresponds best to the best interests of the child .

With the law on the reform of parental custody of parents who are not married to each other  (NEheSorgeRG), the reformed custody of unmarried parents and in particular a new regulation of § 1626a BGB came into force on May 19, 2013. The aim was to give the father the opportunity to obtain joint custody for a child out of wedlock even if the mother did not make a declaration that she wanted to take over parental custody with him.

Austria

By decision of June 28, 2012, the Austrian Constitutional Court , citing the Zaunegger case , revoked the mother's sole custody of the illegitimate child.

On February 1, 2013, the Childhood and Name Rights Amendment Act  2013 (KindNamRÄG) came into force. Since then, the custody of both parents can be determined by mutual agreement at the registry office, even for unmarried couples.

Switzerland

Since 2014, joint parental responsibility has also been the rule for unmarried couples under certain conditions.

literature

  • Thomas Kreuz, Corinna Jürschik: The regulation of parental custody according to § 1626a BGB taking into account the highest court case law. In: Journal for Legal Studies (ZJS), No. 1, 2014 ( pdf ). (on the situation in Germany)

Web links

Individual evidence

  1. ↑ Hanna Roth: The long way of Horst Zaunegger through the courtrooms. ( Memento from December 23, 2015 in the Internet Archive ) In: Südwest Presse , December 4, 2009 (article online).
  2. ↑ Michael Fröhlingsdorf, Dietmar Hipp, Markus Verbeet: Family: The worried father. In: Der Spiegel , December 7, 2015.
  3. ↑ BVerfG, judgment of January 29, 2003 - 1 BvL 20/99 u. a.
  4. ↑ BVerfG, judgment of January 29, 2003 - 1 BvL 20/99 u. a., para. 4th
  5. ↑ § 1626a BGB old version (old version) in the version valid before August 18, 2010 buzer.de, accessed on January 31, 2018
  6. ↑ Case Z. v DEUTSCHLAND (individual complaint no. 22028/04)
  7. ↑ Chamber judgment Zaunegger against Germany (Application no. 22028/04) press release of the chancellor , December 3, 2009
  8. ^ Custody ruling: Minister of Justice promises quick change in law for fathers. In: Die Zeit , December 3, 2009.
  9. ↑ BVerfG, decision of July 21, 2010 - 1 BvR 420/09
  10. ↑ Child Law Reform Act of December 16, 1997, Federal Law Gazette I p. 2942
  11. ^ Draft law by the federal government of a law to reform parental care for parents who are not married to each other BT-Drs. 17/11048 of October 17, 2012
  12. ^ Constitutional Court, decision of June 28, 2012 - G114 / 11
  13. ↑ cf. Section 166  ABGB as amended by BGBl. I No. 135/2000
  14. ↑ Federal Law Gazette I No. 15/2013
  15. ↑ Custody of both parents and the Act on the Amendment of Childhood and Name Rights 2013 - adopted changes help.gv.at , accessed on January 31, 2018