(This is an update to my FAQ about child custody law in Germany.)
For a long time, child custody in Germany was automatically awarded to the mother of the child if the parents were not married at the time of birth. For a long time, a great many people found this to be unfair, both to the fathers and to the children who were often deprived of one of their parents. For a long time, people petitioned the Department of Justice and Parliament to amend the law. I myself represented a fathers’ rights group in a meeting with then Secretary of Justice Ms. Zypries in 2005. In 2010, the Supreme Court ruled the law to be unconstitutional.
Now, in 2013, the child custody law was finally amended and a new child custody law came into effect on 19 May 2013:
So far, unmarried parents could obtain joint custody if they both signed a joint custody declaration. This gave the mother a veto, which many mothers unfortunately abused (to obtain financial benefits, to force the father to do things he otherwise wouldn’t want to do, to move away from the father to disrupt or prevent contact).
Now, the Family Court can rule that both parents have joint custody. (Joint custody does not necessarily mean that the child spends equal time with either parent, it only gives the parents the same legal rights and forces them to come to an agreement about all major decisions in the child’s life.)
This requires a petition from one parent (typically the father). The court has to award joint custody to both parents unless joint custody would contravene the welfare of the child. It is hard to imagine cases where the welfare of the child would be endangered by having two guardians instead of one. The law assumes that joint custody is in the interest of the child (§ 1626a II BGB).
The petition will be served on the other parent (typically the mother) and the court gives them a deadline to respond. For the mother, this deadline has to extend at least to 6 weeks after the birth of the child (§ 155a II FamFG). If the responding parent does not provide any reasons against joint custody, the Family Court will render its decision in writing and without a hearing (§ 155a III 1 FamFG).
This is far from the changes that I would have liked to have seen (total equality between married and unmarried parents and between mothers and fathers), but it is a considerable improvement for unmarried fathers. I am curious to see how it will play out in contested proceedings.