Sunday, August 8, 2010

Germany and Children’s Right to Have a Father

I have said many times that our struggle is not a speed race that will be won in a sudden blow, but a marathon that will be won with endurance and patience.  I have said also that our struggle has to be counted as the sum of many battles that have been won before and that are being won right now.  I have to add now that there are no small battles, that there are no negligible victories.

A man in Germany had a son out of wedlock.  When he requested custody of his son, it was denied because the mother refused.  He challenged the decision and went to the Constitutional Court.  This, the country's highest court, just have ruled that mothers should not be allowed to veto an unmarried father's request for custody, stating that such a veto is unconstitutional and discriminates against his parental rights (“Children Need Both a Mother and a Father”).

Until this ruling, in the cases of separated couples that have never been married, a father could only apply for custody if the mother agreed to.  The court ruled that, while the mother can continue to be initially granted custody, the father should be allowed to request it.

This ruling followed another by the European Court of Human Rights in 2009, which stated that German laws violated anti-discrimination laws and contradicted the European directive on the right to sustain and respect family life.

The German press greeted this judgement as a step forward of German family law.  The article in Der Spiegel that I am quoting quotes several of these enthusiastic responses:

Süddeutsche Zeitung

"The constitutional court's decision on custody rights has put an end to an older, insensitive period of family law.  More than 60 years after the German constitution came into effect, it has finally fulfilled its duty to put illegitimate children on an equal footing with other children.  The judgement is a good example of the court's power to make the law adapt to changed family structures.  Almost every third child (in Germany) is now born out of wedlock.  The country's highest court is now trying, with much juristic finesse, to give these children the right to a father as well as a mother."

Financial Times Deutschland:

"First of all, a change in the law is required…  Unmarried and married fathers should be automatically given custody rights to their children when they are born, rather than having to apply for it."

"The reality is that the mother has long ceased to be the only important attachment figure in a child's life."

Die Welt:

"The judgement is a step in the right direction.  Unmarried fathers will in future have a better chance of securing custody rights.  However, to get this chance they have to still drag their ex-partner to court.  This is not only an unnecessary burden on the courts, it is also a burden on the relationship between the parents, which provides the framework for any joint custody of a child."

"It would make sense to give both parents automatic custody rights when a child is born -- including if they are unmarried."

Frankfurter Allgemeine Zeitung

"It cannot be the case that the mother can block a father's custody of his child, and in doing so interfere with their relationship.  The law cannot abet these kinds of power games that happen when relationships break down.  This is about the welfare of the child.  And family law is still infused with the spirit of the past, a different family reality.  The new ruling is only reflecting the deep changes in society."

"Children need both a mother and a father.  (…)  Those who bring a child into the world together should share responsibility for it."


"Fathers are not per se the worst parent and mothers are not automatically the best.  Uncaring fathers and caring mothers -- these are clichés that since yesterday can be put where they belong: in the garbage can of prejudices."

"Of course the best thing is when a child lives with the father AND mother.  As a proper family.  But this ideal case is (unfortunately) not always reality."

"And if the parents split up, then there should be only one criteria for deciding who has custody: the wellbeing of the child."

For those who still had doubts about the power a lone man could have against the system: watch what just happened in Germany.

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