"Any worker — from the night watchman to the minister — can be replaced by another equally or even more capable worker. But a good father can never be replaced by another equally good father." V. A. Sukhomlynsky
Our readers are surely already aware that paternity, viewed from a biological standpoint versus a legal one, are not necessarily the same thing. The law of many countries contains a presumption that a man married to a woman who gives birth during that marriage is recognized de jure as the father, regardless of whether he is the father de facto. This, of course, gives rise to a number of highly important rights and obligations for the man in question. In cases where "biological" and "legal" paternity do not coincide, parents often turn to a family-law attorney to help set matters straight.
So what, from a legal standpoint, does paternity actually mean 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
Under German law, the child's father is the man who is married to the 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). The rules for recognizing paternity, however, are not identical from country to country — and that is exactly where legal conflicts can arise.
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 child's father. The man recognized as the father from a legal standpoint may, however, challenge his paternity only within the first two years of the child's life. Once that period has elapsed, he no longer has that option — regardless of whether he is the biological father or not. This rule exists in Germany to protect the rights and legitimate interests of minors.
It is worth remembering, however, that the rules for determining and recognizing paternity are not identical the world over. Under the law of many post-Soviet countries, for example, a man who was in a registered marriage is recognized as the father of a child born not only during the marriage itself, but within one year after its dissolution as well. Such nuances and differences in how "legal" paternity is defined can give rise to complications with far-reaching consequences. Parents who want the rights and responsibilities of raising their child to belong to them should therefore act without delay to ensure their status is correctly reflected in official documents — namely, the birth certificate. In this article, we describe one case in which we were able to help a family that came to us find the right solution and achieve a positive outcome.
A couple came in for a consultation at our firm — let's call them Dmitri and Alla. They had recently had a daughter, whom they named Anastasia (name changed). Problems arose when it came to registering the girl's documents, because Alla had only officially divorced her ex-husband a few months earlier. In the end, the newborn's birth certificate carried no first name at all — the girl was given her mother's surname, and Alla's ex-husband was listed as the father. This absurd outcome came about for the following reason.
Before moving to Germany, the woman had lived in Latvia, where she was officially in a registered marriage. Two years into married life, the relationship began to fall apart and the marriage broke down in all but name — the spouses moved into separate apartments, but were in no hurry to divorce officially. Alla then received an offer of a worthwhile job in Germany and, without much hesitation, relocated to Germany permanently. Honestly, for the first several years after the move the woman had no time at all for her personal life, so the matter of divorce was, for the time being, put on the back burner. Alla's official husband was likewise in no rush to divorce — for a while he kept hoping the "broken cup could be mended," and then simply stopped thinking about it and threw himself fully into his career, leaving himself little time for a personal life either. A few years later, however, circumstances gradually began to change: Alla met a new man in Germany, named Dmitri — pleasant in every respect and, most importantly, with serious intentions. Dmitri, of course, eventually learned that Alla was still officially married, but he did not pressure his beloved to divorce immediately. The relationship gradually developed and grew stronger, and became truly serious once Alla became pregnant with their future child. It should be said that the pregnancy did not go entirely smoothly, and was at risk during the first three months. Naturally, the question of an official divorce from her ex-husband moved to the forefront, but she only managed to travel to Riga and obtain the divorce in her sixth month of pregnancy. Once their daughter was born, a great many formalities had to be dealt with: registering the birth certificate, registering the child's residence, arranging health insurance, and applying for social benefits. Problems arose right away with the birth certificate. It turned out that, under Latvian law, the child had been born within the year following the official divorce, meaning that, from a legal standpoint, Alla's ex-husband was considered Anastasia's father. What's more, the situation was made worse by the fact that the German civil registry office (Standesamt), because Alla and her ex-husband both held Latvian citizenship, decided to apply Latvian law to the case. As a result, since the "legal father's" (our client's ex-husband's) consent was — quite logically — absent, the newborn child's first name was likewise missing from the birth certificate. In addition, the girl was given her mother's surname, while her ex-husband was listed as the father. Needless to say, this situation was entirely unacceptable to everyone involved. Anastasia's parents therefore lost no time in turning to our law firm for legal help.
Our firm's lawyer, who specializes in family-law matters, reviewed the situation and moved quickly and decisively. He prepared a claim to the family court (Familiengericht) disputing the information recorded on the child's birth certificate and seeking recognition of paternity for the girl's biological father. In a case like this, the law allows either German or Latvian legal provisions to be applied — and that is precisely what was done. That said, the most important factor in deciding which legal rules to apply is what best serves the interests of the minor child. In Anastasia's case, Alla's ex-husband drew up and sent us a statement declaring that he could not be the girl's father, while the woman's new partner voluntarily declared his acknowledgment of paternity. Given ordinary common sense, there was simply no way to call the Standesamt's decision reasonable or well-founded. The right course of action in this situation was to set the record straight and recognize the parental rights of the child's biological father — the man who intended to take direct part in caring for and raising the girl.
The lawyer's compelling arguments proved decisive in court. As expected, Dmitri was legally recognized as Anastasia's father, and the girl's birth certificate was amended accordingly. It now stated that the girl's name was Anastasia, that her father was Dmitri, and she was subsequently also given her biological father's surname.
Our clients were extremely pleased with our work — thanks to our lawyer's efforts, the tangled knot was untied and the real father's parental rights were recognized, now correctly reflected in the child's principal identity document. In closing, we would like to once again encourage all our readers never to put off resolving important, pressing matters for too long — including matters touching on the legal side of personal relationships. Marriages that have not been officially dissolved can unexpectedly give rise to exactly this kind of misunderstanding, with serious legal consequences. Still, we all understand that even the most sensible people are prone to mistakes. Fortunately, for situations like these, there are lawyers ready to help and to find a way out, even of the most tangled and seemingly hopeless of circumstances.
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