"All happy families are alike; each unhappy family is unhappy in its own way." — Leo Tolstoy
For some, pregnancy, childbirth, and motherhood mean the continuation of the family line; for others, a woman's calling; and for others still, an escape from loneliness. But for everyone, the birth of a child is, above all, a source of joy and meaning in life. At the same time, it is no secret that good parents need dedication, boundless patience, attentiveness, the ability to take on responsibility, resourcefulness, a creative approach, and many other positive qualities to raise a healthy, happy child. In certain cases, a reasonable question arises: who, exactly, is recognized as the parent of a newborn child? While the identity of the mother is, in the overwhelming majority of cases, beyond question, the identity of the father is not nearly so clear-cut.
So who, from a legal standpoint, counts as the father of a child under the law in force in Germany?
From the law's point of view, the rules are set out quite clearly: the father of a child is the man who — is married to the child's mother at the time of the child's birth; or — has acknowledged paternity himself; or — whose paternity has been established by a court under § 1592 of the German Civil Code (German: Bürgerliches Gesetzbuch, BGB).
Important at Divorce
From the law's point of view, the rules are quite clear: the father of a child is the man who is married to the child's mother at the time of birth, who has acknowledged paternity himself, or whose paternity has been established by a court under § 1592 of the German Civil Code (German: Bürgerliches Gesetzbuch, BGB).
Taken at face value, the law provides that the legal husband of a woman who gives birth during the marriage is automatically recognized as the father. It can happen, however, that alongside the lawful husband, who becomes the child's father from a legal standpoint, there also exists another man who is the child's biological father. Circumstances can arise in which a woman who has given birth to a child fathered by someone other than her husband wants the child's biological father — not her husband — to be recognized as the father. In such complicated, tangled situations, the help of a qualified lawyer is usually indispensable. In this article, we would like to describe one such case from our practice.
A middle-aged woman came in for a consultation at our law firm — let's call her Lidiya. Her life story is hardly an ordinary one. She had met a man — let's call him Samvel — while still living in Ukraine. It was there, in a small provincial town in Donetsk Oblast, that they married, and the marriage eventually produced three healthy, very beautiful children. A few years later, the family moved to Germany — it was no longer safe to remain in Ukraine, and Lidiya had relatives living in Germany. After arriving in the country, every member of the family managed to obtain refugee status and a temporary residence permit. It might seem there was little more to wish for in such a situation — the family had a husband and wife, three children, a three-room apartment, and sufficient means for a dignified life in Germany. Yet, as the poet Vladimir Mayakovsky once put it, "the love boat has smashed against the daily grind" — small quarrels and larger ones began flaring up in the household with increasing frequency, escalating into full-blown fights. Unfortunately, the situation did not resolve itself; the problems within the family kept mounting, and one day the couple made what was probably the wisest decision available to them — to move temporarily into separate apartments. Samvel moved in with an old friend for a while, and Lidiya remained in the same apartment with the three children.
Our future client, however, wasted no time — just a month after separating from her husband, she met a German citizen named Georgi (name changed), with whom she began a whirlwind romance. Events unfolded at a striking pace — only two weeks after meeting, Georgi moved into Lidiya's apartment, and a month after that it turned out that Lidiya was expecting — she was carrying a fourth child. The woman certainly wanted this child to be born into a complete family, but the situation looked rather absurd. Since Lidiya's marriage to Samvel had not yet been dissolved at that point, under the rule laid down by law, the child's father would have to be recognized as Lidiya's lawful husband. Yet it was perfectly obvious to both our future client and her official husband that Samvel was not the child's biological father. What's more, Lidiya's new partner, Georgi, was prepared to embrace his new role and wanted to become not only the child's biological father but also the child's "legal" father.
Our firm's lawyer, experienced in family-law matters, was not thrown off by this. Ready to tackle all manner of unusual problems, he got straight to work. He began preparing a set of documents for the court so that the divorce could take place earlier than the year of separation ordinarily required by law. This exception to the rule could be obtained under § 1565 of the German Civil Code (German: Bürgerliches Gesetzbuch, BGB) by citing weighty reasons in support. He prepared a corresponding application to the court, stating that the woman was expecting and that the child's father was not her husband. Unfortunately, life had its own plans for us — Lidiya's son arrived "a little early," ahead of his due date. At that point, the family court had not yet ruled on our application, and Samvel was legally recognized as the child's father.
There was, however, no cause for despair — the lawyer continued working on our client's case and prepared a fresh application to the court, this time for the divorce to proceed under Ukrainian law. This was possible because Lidiya was a Ukrainian citizen and the marriage had been concluded on Ukrainian territory. It had to be borne in mind, however, that under the applicable Ukrainian family law, a divorce where the spouses have a child under one year old is only possible once another man has acknowledged that child as his own. Georgi, accordingly, with the help of our firm's lawyer, confirmed his paternity of our client's youngest son, and this acknowledgment was duly certified by a notary. The documents recognizing Georgi's paternity were submitted to the court. To the delight of our client and her new partner, the proceedings concluded in their favor — Lidiya obtained the freedom she had so longed for from a marriage that had become a burden to her, both literally and legally. She was now unmarried and free to build a new family with the man she loved. That said, the question of officially recognizing paternity, from the standpoint of the state authorities, was not yet resolved — under the birth certificate originally issued in Germany, Lidiya's fourth child was still officially registered as Samvel's son. Our firm's lawyer continues to work on this matter and is pursuing a formal challenge to paternity. He is currently actively preparing a set of documents for submission to the court, which will include the results of a genetic test conclusively establishing that Georgi is the boy's father. In this case, we have every reason to believe that this matter, too, will be resolved in our client's favor.
Why the Family Shapes Everything
In closing, we would like to note that every parent should remember that it is the father and mother who are closest to a child and who have the greatest stake, more than anyone else, in the child's harmonious development and robust physical and mental health. They must be firmly aware that, in deciding how to arrange the relationships their shared child will be part of, they must be guided not by their own grievances, expectations, and ambitions, but by the interests of the child. What a child acquires within the family during childhood stays with them for the rest of their life. It is within the family that the foundations of a child's personality are laid, and by the time a child starts school, more than half of their personality has already taken shape. The family is a collective of a special kind, playing the primary, long-term, and most important role in a child's upbringing. Anxious mothers often raise anxious children; ambitious parents not infrequently suppress their children to such an extent that it leaves them with an inferiority complex; a short-tempered father who loses his composure over the smallest provocation often, without realizing it, instills the same pattern of behavior in his own children, and so on. We hope that Lidiya, Samvel, and Georgi will be able to find compromises on every question relating to raising their children, and that they will succeed in raising children who do them credit. For our part, we will continue to support their case through to a successful conclusion, and in the future as well, should they or members of their family again need qualified legal help and support.
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