Modernization of parentage and child custody law: Federal Justice Minister Buschmann presents key points

Federal Minister of Justice Dr. Marco Buschmann today published two key issues papers on the modernization of family law: a key issues paper on the reform of child custody law with proposals for new rules in custody, visitation and adoption law and a key issues paper on the reform of parentage law.

Source: BMJ

In particular, children in separated families, patchwork and rainbow families as well as non-marital partnerships should benefit from the proposed new regulations.

Federal Justice Minister Dr. Marco Buschmann:

“We need a boost to modernization in Germany - also in family law. Many children today grow up in separated families, in patchwork and rainbow families or with parents who are not married to each other. Our family law lags behind this reality. Parents and children pay the price: family law makes life unnecessarily difficult for many people.

As a federal government, we came into office with the promise to adapt our family law to the requirements of today. And we keep our word: the reform of naming law is nearing completion. I have already presented a concrete proposal for the reform of maintenance law. The next important steps now follow with the proposals to reform parentage law and child custody law.

When it comes to reforming child custody law, we are primarily concerned with separation and patchwork families. Today, many parents want to look after their children as partners after a separation. We want the law to support parents in this – and to give them more freedom to agree on solutions that are right for them and their children. We also want to strengthen the legal position of children and improve protection against domestic violence in custody and contact proceedings: experts have been warning about this for many years.

By reforming parentage law, we want to eliminate the existing discrimination against same-sex couples and their children. Children born into a partnership between two women must not be worse off than children born into a partnership between a man and a woman. They should be able to have both women as parents from birth. With the reform we also want to create more legal certainty for sperm donations. And we want to strengthen the legal position of biological fathers who want to take responsibility for their child as legal fathers. We also want to strengthen the right of children to know their own ancestry. We will adhere to the proven principles of current law: In the future, the woman who gave birth to the child will always be the mother of the child. And the same applies in the future: a child can only have two legal parents.

Our aim is to adapt the law to social reality, as science and practice have been demanding for many years. The child’s well-being is our top priority. Our goal is family law for everyone: family law that offers the right rules for all family types - and does not discriminate against any family type."

I. The key points paper on the reform of parentage law

Parentage law determines who the legal parents of a child are. It should be further developed in various ways. Proven principles of applicable law remain intact . In the future, a child should not be able to have more than two legal parents (two-parent principle). The woman who gave birth to the child will also always be the legal mother of the child in the future. Furthermore, it remains the case that the legal father will continue to be anyone who is married to the mother at birth, who recognizes paternity or whose paternity has been established by a court.
The following innovations in particular are planned:

• Equality for same-sex couples and opposite-sex couples: If a child is born into a partnership between two women, the partner of the woman who gave birth to the child should also be able to become the mother of the child in the future without going through the adoption process. The same applies to them as applies to opposite-sex couples to the male partner of the woman who gave birth to the child. If both women are married, the wife of the woman who gave birth to the child should also become the mother of the child by law at the time of birth. It should also be possible to become a legal mother through recognition of motherhood - just as a man can recognize paternity of a child.
• More legal certainty for sperm donation through parenthood agreements: Before a child is conceived, it should be possible to agree who, besides the woman who gave birth to the child, should become the father or mother of the child. This is intended to enable legally secure parent-child matching at an early stage, particularly in the case of private sperm donations ( so-called cup donations).
• Strengthening the legal position of the biological father: A biological father who wants to take responsibility for his child as the legal father should have his legal position strengthened through the following changes.
  Blocking effect of a pending determination procedure: As long as legal proceedings are ongoing in which a man wants to have his paternity established, in principle no other man should be able to acknowledge paternity of this child.
  No categorical exclusion of challenges in the case of a social-family relationship: anyone who believes that they are the biological father should be able to challenge the paternity of another man in the future, even if the child has a social-family relationship with the other man. A socio-familial relationship between the child and its legal father should no longer categorically exclude the challenge of paternity. Rather, in such a case, the court should examine on a case-by-case basis whether the interest in challenging paternity outweighs the interest in the continuation of the previous assignment. In case of doubt, priority should be given to preserving the existing family.
  Recognition of paternity with the consent of the mother's husband: If a married woman is expecting a child from a man other than her husband ( e.g. from her new partner), the other man should be able to become the legal father more easily in the future if the mother and her husband agree are. In future, the biological father should be able to acknowledge paternity no later than eight weeks after the birth of the child without having to go through a challenge procedure. It should no longer be necessary to divorce the marriage.
• Strengthening the right to know one's own ancestry: In the future, children should find it easier to realize their right to know one's own ancestry. The following changes are planned for this.
  Status-independent determination procedure: In the future, it should be possible to have a court order determine whether a person is the biological father of a child - without the legal parenthood changing at the same time; The procedure will be accessible on an equal footing with status procedures (challenge or determination of legal paternity). In this way, a child can have it determined who their biological father is without having to cut off their legal ties to their legal father.
• Expansion of the sperm donor register into a general donor register: In addition to official sperm donations (i.e. sperm donations from a sperm bank), private sperm donations and embryo donations should also be recorded there.

The key points paper on the reform of parentage law is available here . A short version is available here . Frequently asked questions about the paper are answered here .

II. The key points paper on the reform of child custody law

The key points paper on the reform of child custody law contains proposals for reforming custody and visitation law as well as adoption law. In non-marital partnerships, separated families, patchwork families and rainbow families, it should be easier to look after children as partners. Parents should be able to more easily conclude agreements about care and access and grant third parties custody or access rights. Children should be strengthened in their legal position. Protection against domestic violence in custody and access procedures should be improved. In addition, adoption law should be liberalized.

The following innovations are specifically proposed:

• Alternating model: The alternating model, which many parents already live after a separation, should be regulated by law for the first time: It should be made clear that the family court can order care by both parents in a contact procedure (after separation), and if necessary also equal care – if this is best in the child’s best interests.
• Custody in non-marital partnerships: A father who lives with the mother but is not married should be able to obtain custody more easily in the future. If the mother does not object, a one-page, documented statement should be sufficient.
• Agreements between parents on custody: Parents should be given more autonomy with regard to their custody: they should be able to agree on sole custody of one parent; It should also be easier to transfer parental responsibility from one parent to the other.
• “Small custody”: In the future, the legal guardians (usually the parents) should be able to grant custody rights to up to two other people – for example their new partners – by agreement.
• Agreements on access rights with third parties: In the future, the parents with custody should also be able to conclude agreements on access to the child with third parties.
• Children's right to contact: Children should have the right to contact with grandparents and siblings, with other caregivers and with biological, non-legal parents.
• Children's right to co-decision-making: From the age of 14, children should in future have express co-decision-making powers in matters of custody and visitation. For example , they should be able to request a new decision on a contact arrangement that has already been made.
• Protection against domestic violence: Protection against domestic violence in custody and access rights should be improved through the following adjustments to the law:
  Obligation to investigate: It should be made clear that the family court in access proceedings should provide evidence of domestic violence against the child and/or the other parent and their consequences must be comprehensively and systematically investigated and a risk analysis carried out.
  Custody and access rights: In the event of partner violence, joint custody should generally be excluded. It should be made clear that the family court can restrict or exclude contact if this is necessary to avert a specific threat to the caring parent from a violent ex-partner.
• Liberalization of adoption law: Even couples who are not married should be able to adopt a child together; Currently this is only possible for married couples. In the future, married people should also be able to adopt a child on their own.

The key points paper on the reform of child custody law is available here . A short version is available here . Frequently asked questions about the paper are answered here .

On the basis of the two key issues papers, the Federal Ministry of Justice will now develop draft laws for the reform of child custody law and the reform of parentage law. The draft laws are expected to be presented in the first half of 2024.