Does a Biological Father Have the Right to Contact With His Child?

Neither poverty, nor work, nor the respect of others releases a father from the duty to feed his children and to raise them himself. — Jean-Jacques Rousseau

Unfortunately, much in our lives is imperfect and does not always match the classic picture of the world. This holds particularly true for the legal regulation of marriage and family matters. As a general rule, a mother and father raise their shared children together, each making an equal contribution to their children's harmonious, well-rounded development. In Germany, as in any other civilized country, both parents have equal duties and rights with respect to their children. All questions relating to a child's upbringing and education are meant to be decided by the spouses by mutual agreement, taking the children's views into account and acting in their best interests.

As a general rule, parents and close relatives of a minor member of society in Germany hold two main types of rights: Sorgerecht — the right to decide vitally important matters (choosing a name, place of residence, educational institution, principles of upbringing, and so on); and Umgangsrecht — the right of parents and close relatives to contact with the child.

Thus, in Germany it is the parents who hold the authority to make the key decisions regarding a child's basic needs and upbringing. The state does not intervene in such matters unless doing so is necessary to protect the child's rights and interests.

If the mother and father live separately, each of them still retains the right to contact with the child — provided that such contact does not harm the child's physical or mental health and does not contribute to the child's moral corruption. The child's place of residence with one parent, as well as the arrangements and frequency of meetings with the other, are determined by mutual agreement.

At this point, readers may naturally wonder: who, under the law, actually counts as the parents of a given child?

While determining motherhood is fairly straightforward, questions of fatherhood can, in certain cases, give rise to ambiguous situations.

On the one hand, the law spells this out clearly: a man is considered the father of a child if: — he was married to the child's mother at the time of the child's birth; — he voluntarily acknowledged paternity; or — his paternity was established by a court under § 1592 of the German Civil Code (German: Bürgerliches Gesetzbuch, BGB).

Taken literally, the provisions of the law mean that the lawful husband of a woman who gives birth during the marriage is automatically recognized as the father. However, it can also happen that, alongside the lawful husband who becomes the child's legal father, there is another man who is the child's biological father. And it may well be that the biological father only learns of this important fact later, once his son or daughter has already grown up. This raises the question: does such a man hold any rights or duties with respect to his child?

Indeed, § 1686a Abs. 1 BGB governs a biological father's right to contact with his child and to receive information about the child. However, beyond the applicant's biological relationship to the child, the law also requires that the applicant genuinely take an interest in the child, that contact with the applicant would serve the child's welfare, and that the applicant's interest in receiving information about vitally important aspects of the child's upbringing and development be well founded. Establishing these facts is just as essential a precondition — alongside establishing the biological relationship itself — for obtaining the right to contact with the child and to information about the child.

Clients quite often come to our firm seeking advice, as well as protection of their rights and legitimate interests, in resolving family-law disputes. Such disputes also arise, among other things, when determining parents' rights and duties with respect to their minor children. In this article, we would like to describe one interesting case currently in our hands.

Our firm's client was a middle-aged man — let's call him Sergei. He told us an interesting story from his past. About 15 years ago, he was dating a young woman named Lyudmila (name changed). As it happened, the two had known each other since their university days. During their student years, they had a passionate but short-lived romance. After graduating, Sergei and Lyudmila's paths went their separate ways, and each started a family of their own. Some years later, however, meeting again at an alumni reunion, they were reminded of their intense student romance. On the strength of that memory, they became close once more. For a time, the fact that each of them was now bound by family obligations was set aside. Everyone stumbles in life now and then — what matters is that such mistakes not carry unforeseen consequences. The brief affair ended as quickly as it had begun. Lyudmila became pregnant and knew that the father of her child-to-be was Sergei, not her lawful husband. Some time later, Sergei's wife began to suspect him of infidelity, and he made the deliberate decision to end things with his old flame from student years and preserve his marriage. Lyudmila, for her part, decided to have the child and to go on living with her husband. She later confessed to her husband that the child was not actually his — but from the moment of the boy's birth, Lyudmila's husband was, legally speaking, the child's father. Sergei's own life did not run smoothly — in search of good work, he moved from city to city, tried his hand in various industries, started businesses that quickly failed, and, after a while, would come up with something new to try. It should be said that he knew his own biological son was growing up with his former lover. Our future client always took an interest in the boy's life, visited him from time to time, and, whenever he could, helped him out financially. Lyudmila's life, too, was far from uneventful. A few years later, she divorced her husband and began living with another man. Moreover, once in this new relationship, the woman — for reasons known only to her — decided to cut off contact between Sergei and their son, who by then had grown to 14, even though Lyudmila herself had never disputed the fact of his biological paternity. On learning of this decision, and unable to reach an agreement with the boy's mother on his own, Sergei turned to our law firm for advice and legal support, as this state of affairs was completely unacceptable to him.

The first step taken by the lawyer representing Sergei's interests in this case was an attempt to resolve the matter amicably with Lyudmila, without bringing it to court. The lawyer sent her a prepared statement setting out our client's lawful demand to be allowed regular meetings with his son. It proposed agreeing on a schedule, duration, and location for the meetings that would suit both parents. The woman did not respond to this approach at all and refused to negotiate. She explained her position by pointing to the fact that Sergei's contact with the boy had been irregular — he would appear in the boy's life from time to time and then disappear again for a while — and that all of this had a negative effect on the teenager's psyche. For that reason, she believed it would be better to end the contact altogether. Our client, however, did not want to give up, and decided to see the matter through to the end. The next step taken by our firm's lawyer was to file a petition with the court. The main relief sought is that Sergei be granted the right to regular contact with his son. The lawyer is currently actively preparing for the hearing and gathering comprehensive evidence showing that: — our client took an interest in the woman's wellbeing and the development of the pregnancy even before the boy was born, and accompanied her to the doctor and to ultrasound appointments on several occasions; — Sergei has regularly taken an interest in his son's life and upbringing, and has sent money for clothes, children's books, and toys; — he has a sound legal basis for continuing to have contact with the child; — contact between father and son would support the teenager's harmonious development; — and the boy himself also wishes to continue having regular contact with his father.

We expect that, after weighing the arguments and evidence set out above, the court will rule in our client's favor. The court will first and foremost examine how contact between the child and his biological father would affect the teenager's development. If the ruling favors our client, then, even if the boy's mother objects, the court's decision will allow Sergei to have contact with the child on a regular basis. The court will set a specific schedule of meetings under which Sergei will be able to visit his son or take him for a period of time.

Unfortunately, it must be acknowledged that children are the ones who suffer most from conflicts between adults. Even once the adults have reached a compromise, the trauma to a child's psyche can leave a long trail of consequences. That is why we once again urge our readers to approach matters involving children with a level head and always to look for a constructive solution. When it comes to the legal side of such questions, we invite you to a consultation at our law firm, where we will carefully analyze every detail of your case and help you find the right solution for your particular situation.

Family Law

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