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."

Bild:

"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.

What Do Children Want?

In his article titled “Australian Study Asks Children Their Ideas About Custody”, Robert Franklin, one of the regular collaborators of the Fathers & Families website, reviews a study done by Dr. Alan Campbell of the University of South Australia (Child Care in Practice, 7/1/08).

Dr. Campbell and his team interviewed a group of Australian children between the ages of 7 and 17, all of them children of divorced or separated parents. The study wanted to answer three basic questions:

1. What are children’s views on their ability to participate in decisions that directly affect them following their parents’ separation?

2. To what extent do children’s interview texts reflect an adequate understanding of children’s rights?

3. How do children construct their understanding of the concept of their ‘‘best interests’’ in relation to post-separation decision-making about their futures?

Campbell questions come from previous studies that show that courts tend to ignore children’s views on divorce, separation, and custody, a behavior that is based on the dubious idea that courts know better than children what is in their “best interests.”

The study proved that children not only have very specific views on these issues, but that they also wanted to express them. For example, most of the interviewed children wanted to have some input in the decisions that were being made about their lives, they believed that this was their right; as Franklin writes, “they wanted their voices to be heard.” When discussing the topic of the so-called “best interests of the child,” they stated that being consulted should be part of the concept. They believed that when courts ignore their voices, they are ignoring one of the main things that would guarantee their best interests.

The children were also concerned about the lack of fairness that prevailing custody arrangements represented for their parents and for them. They considered the practice of awarding primary custody to one parent unfair to both the non-custodial parent and them.

Children wanted fair custody arrangements and considered the common practice of primary custody/visitation unfair. They believed that only fair custody arrangements could satisfy the law’s requirement that the courts act in their best interests.

The interviewed children tended to consider that experts appointed by courts (social workers, psychologists, etc.,) interfere rather than serve the process, and that family members, including members of extended family, should be the ones making decisions about custody. Any input from outside the family was considered less legitimate than the advice and counsel of family members. Although this idea would be almost impossible to put into practice, it shows that children understand family as a complete unit, a concept that family courts tend to ignore.

As Franklin writes, maybe it is time already to start listening to our kids.

2010: The Fresh Air Fund's Summer

The Countdown to Summer 2010 is on and The Fresh Air Fund is in need of host families. If you or someone you know is able to host, please sign up now.

In 2009, The Fresh Air Fund's Volunteer Host Family program, called Friendly Town, gave close to 5,000 New York City boys and girls, ages six to 18, free summer experiences in the country and the suburbs. Volunteer host families shared their friendship and homes FOR up to two weeks or more in 13 Northeastern states from Virginia to Maine and Canada.

The Fresh Air Fund relies on donations to provide memorable summers to NYC children.

The Fresh Air Fund needs hosts for the summer of 2010.

More than 65% of all Fresh Air children are reinvited to stay with their host family, year after year.

Thanks to host families who open up their homes for a few weeks each summer, children growing up in New York City’s toughest neighborhoods have experienced the joys of Fresh Air experiences.

As one of the host families declared: "It is rewarding to see the smile on our Fresh Air child's face as she enjoys the simple things we take for granted..."

Friendly Town host families are volunteers who live in the suburbs or small town communities. Host families range in size, ethnicity and background, but share the desire to open their hearts and homes to give city children an experience they will never forget. Hosts say the Fresh Air experience is as enriching for their own families, as it is for the inner-city children. There are no financial requirements for hosting a child. Volunteers may request the age-group and gender of the Fresh Air youngster they would like to host for up to two weeks.

Click here to learn more about becoming a host or call (800) 367-0003!

(This post is a collaboration of Sara Wilson of the Fresh Air Fund)

The Langeac Declaration (2 of 2)

Last week I wrote about Declaration of Langeac. I consider it an important step towards an unified declaration of principles of our movement, towards an universal synthesis. Following is the full text of the Declaration:

Declaration of Langeac

Principles:

1. Fathers and mothers should be accorded equal status in a child’s life, and consequently should have equal rights and equal responsibilities.

2. Where the parents cannot agree, the children should spend equal time living with each parent.

3. Parenthood must be based only on the child-parent relationship, not that between parents. Children have the right to know both parents and vice versa.

1. The interests of the child:

a) The interests of the child will not be viewed as a pre-defined and separate entity from that of parents and family or as something to be defined by the public authorities or professionals. Parents will act as the medium for interpreting the interests of their children except in extreme cases of individual abuse or parental incapacity.

b) The public authorities and third parties can and should be encouraged to support families and individual family members when they need help and if necessary proactively. However in no case except that of severe abuse should they have the right to intervene where parents do not wish this.

c) The child has the right to communicate with his or her parents whatever the situation.

d) Biological parenthood should be established at birth by way of DNA testing. For any DNA test all material evidence and records should be destroyed immediately the conclusion of parenthood (or non-parenthood) is reached.

2. Elective contracts between parents:

a) Parents will be able to sign legally valid contracts which may vary their individual rights in regard to their children, eg: in the case of a family split they may agree to make a non-equal division of time and salaries if both so wish, or incorporate clauses involving spousal maintenance. The governments bureaucracies involved in these areas are charged with creating suitable blank contracts and formulae in order to simplify the choices involved and the cost of such procedures.

b) Parents will have access to advice and structured agreements (contracts) which will in all cases, be it via mediation or judicial intervention, stand as valid instruments permitting the formalization of such methods as division of residential time, etc.

3. Respect for the individual freedom of action of each parent:

a)… will not be modified, except by the minimum requirements of parental cooperation.

b) Geographical dislocation: where one or both parents wishes to move somewhere far away, leading to potential problems of contact, transport costs and disruption to children, may require outside authorities to make decisions affecting the quantities of time spent with each parent. This is because the free adult choice of where to live may be in conflict with the compromises necessary to ensure parental residence. Decisions thus arrived at must take into account all factors, including the need to find a job by moving for instance, and the need to respect adult choices and decisions. Assumptions based on the dogma of stable residence should not be made.

4. Adoptive parents, extended family and significant others:

Children should have the right of access to and information from members of the extended family on both sides and vice versa. The residential parent at any given time should have the right of final decision over children’s contact with other parties excepting extended family, parents and adoptive parents. The child retains the right to know both natural parents, of both receiving and sending communications to them, with proof that this has arrived.

5. The Politico-legal Context:

a) The politico-legal context within which family and gender issues are decided must be clear and fair between the sexes, with neither positive or negative discrimination. Relationships between men, women and children will be treated in such a way as to preclude the development of group competition and polarity between them. There should be no presumption that one group’s needs override the interests of others.

b) The interests of the child are defined by parents, together. In the case of separation they are to be defined by each parent in their residential time with the child. Only in the case where clear abuse against the child is established may other parties or public bodies acquire the right to override parental decisions in this respect In all other cases, their decision-making power should be limited to the ability to offer help and support to families in need.

6. Equality at work:

a) Both sexes should have equal right to parental leave from work.

b) Work structures should be planned so that both parents are able to participate as fully as possible in the life of their children.

c) This indisputably requires the restructuring of employment so that in many ways it reflects the work patterns of primary and secondary school teachers. This proposal is made, of course, within the context of a global reduction in the requirements for workers and in the light of general awareness of the need to enrich the emotional and functional links between the generations.

7. Mediation, Judicial Discretion and Involvement of Professional Third Parties:

a) Mediated cooperation through professional third parties may be preferable where children’s welfare requires it. Residence should not be dependent on the assessment by professionals of parental cooperation or non-cooperation.

b) Certain decisions require joint consent. Structures should be put in place to enable this, whether through third parties or directly. Examples of such decisions: vaccinations (medical care), choice of school, residence timetables, etc.

c) Only in the case that parents are not able to arrive at a mutual agreement will the intervention of mediators in the first instance and of the court as a final resort become necessary.

d) In cases where parents simply do not or cannot reach agreement, either directly or through mediation, judges will have to make the decisions for them. This does not imply that these outside authorities have the right to decide the quantities of parental time, but only the distribution of the quantities of time agreed by both parents or the default of 50 / 50.

e) Justice should not only be done but be seen to be done. In camara proceedings should be avoided wherever possible. Where it is deemed necessary or desirable to protect the identity / ies of the parties, records of the proceedings and justification for the decision should be made publicly available. In order to achieve this, proper stenographed records of all proceedings must be kept.

f) Mediation should be available before, during and after divorce / separation. Mediation must be independent from the courts. It must always be a free public service, optional and gender neutral. Courts should respect mediation agreements and mediation intervention.

8. Finances:

a) If parents are financially capable, each parent is to be held financially responsible for half the costs of childcare. This cost may be pre-determined on the basis of minimum child maintenance and childcare costs, which will be the responsibility of parents in the first instance, and of the state or other responsible bodies where parents do not or cannot fulfill their obligations.

b) Any other agreements or contracts between the parents regarding financial maintenance and other childcare issues may be freely entered into by mutual accord between both parents. That is to say, both parents can mutually sign legally valid contracts varying their basic rights, for example, by giving more or less rights to money or residential time to one or the other parent.

9. Child abuse:

i) cruelty;

ii) negligence;

iii) violence;

iv) sexual abuse

should be dealt with under the relevant criminal law, not the laws of residence and equal parenthood. The presumption of innocence until proven guilty should apply in all cases except those at b) below.

a) Evaluation of child abuse should be without prejudice. The four types of abuse will have no order of priority in judicial decisions. Unless accusations are of such gravity that they affect the immediate safety of the child, no decision to suspend residence with either parent should be made.

b) Where accusations exist and residence has been suspended, immediate provisional investigation to assess dangers of residence should take place, with a maximum of a two weeks’ delay permitted before 50 / 50 or other agreed double residence is restored. Separation should not be used as an opportunity for revising the residence rights to one of the parents.

c) False accusations or perjury should be severely dealt with under the criminal law.

d) As parental alienation damages the child-parent relationship, it is detrimental to the best interests of the child, and should be viewed as a form of child abuse. Actions by state authorities which damage child-parent relationships should also be viewed as a form of child abuse and carry corresponding penalties.

10. Cases which do not concern equal parenthood:

EP does not directly address cases where one or both parents refuse or cannot take up their parental responsibilities in respect of their children, to care for and maintain them. It only addresses those cases where both parents want to look after and be responsible for both of their children. Within EP it is recognised that to force a parent to look after their child physically when they state they do not wish to is probably inadvisable. However, given that financial obligations to care for the child exist, the need to provide care for the child are available, either through the parents or the state. Equally, child abuse is under EP, regarded as a distinct and separate question.

Definitions

Parents

… are defined as the biological parents or in the case of severe abuse by biological parents or where children are orphaned, the adoptive parents.

Child

… is taken to mean a human being from birth to the age of emancipation or majority, whichever is the lower.

Family

…is a child and it’s biological or adoptive parents.
Extended Family

… are the blood relatives of the child or his or her adoptive parents.

Clarification: Each part of this declaration is integral to the whole and cannot be applied outside the context of the other clauses.

The Langeac Declaration (1 of 2)

A couple of weeks ago, doing my research for this blog, I found the Declaration of Langeac.

In June 1999, in Langeac, a small town located in the South of France, fifteen individuals from seven different countries (Spain, Ireland, Chile, Germany, Holland, the United Kingdom, and France) met to discuss the state of children and family rights. The result of this meeting was the Langeac Declaration.

The Declaration is a succinct but comprehensive document intended to express a set of aspirations on family matters and to open an international discussion on the human rights of families and the role of government agencies in family matters. The writers of the Langeac Declaration do not consider it a finished document, but the foundation of an ever-changing document, always open to criticism and refinement.

Since its publication, the Declaration has influenced the discussion that these issues have had by parent support groups, professionals and social scientists in countries like Holland, Brazil, Argentina, New Zealand, Chile, Germany, Ireland, Spain, the United Kingdom, and the United States.

The Declaration, with versions in six different languages, can be signed online. For the next two weeks, I will be publishing its content.