The right to custody only on a claim

[25.10.2010] The organisations combined in the Association of the German Family Organizations (AGF) e.V. are voting for the so-called “petition model” as the proposed draft law for the restructuring of the law on child custody.

With regard to the custody of children of parents who are not married to each other a draft law by the Justice Minister, Leutheusser-Schnarrenberger, is expected in the near future in response to the ruling of the European Court of Human Rights (3 December 2009) and the Federal Constitutional Court (Decision of 21 July 2010).
According to the former rulings the non-married father only had the possibility of joint custody if the mother of the child agreed. Both decisions have determined that this is neither compatible with the Convention on Human Rights or the Constitution, if the possibility of judicial review is missing. Indeed, the present regulation has not been rejected because the custody is initially given to the mother, who thereby gets the needed capacity to act.
The AGF therefore calls for giving the custodial consenting father the possibility of a judicial review if the mother does not consent to joint custody (petition model). The AGF rejects an automatic joint custody right for parents who are not married to each other.

“The petition solution is the more appropriate and viable model,” evaluated Edith Schwab, chairwoman of AGF and a lawyer specializing in family law, on the current discussion. “The AGF therefore advocates a petition solution in the event of disagreement, with sole custody remaining initially with the mother until a court passes on the petition of the father, on the courts conviction, that joint custody is not contrary to the interests of the child.”