Establishment of kinship (maternity / paternity); assignment of parental responsibility (personal care or custody) and direct and regular relationship (parenting time, visitation)

According to § 1626 a of the German Civil Code (BGB) in the 1997 version, joint parental custody could only be established by a joint declaration of custody by the parents or by their marriage. Otherwise, the mother was entitled to custody. The father only had the possibility to get custody without the mother's consent if she was deprived of custody.
From 1983 to 1993, the applicant in the main proceedings lived together with the respondent and her two sons from another relationship in a non-marital partnership. In 1990, the joint son was born, for whom the claimant acknowledged paternity. In 1993, the parents separated. The child initially remained with the father on the basis of a written agreement, who cared for him for eight months until he surrendered the child at the mother's request. During the following years, the father and son had frequent contact and spent vacations together. During a hospital stay of the mother, she handed the child over to the care of the father. In 1997, the mother forbade the father to have any contact with the child. The father filed for sole custody. The family court suspended the proceedings and referred to the FCC the question of whether it is constitutional that the father could not be awarded joint custody of his child as long as the child's mother refused to consent to this.
The FCC held that § 1626a of the Civil Code in the version of 16 December 1997was not compatible with Article 6.2 and 5 of the Basic Law to the extent that there was no transitional provision for parents who separated before the Act on the Reform of the Law of Parent and Child came into force on 1 July 1998. It was a violation of the father's parental rights under Article 6.2 of the Basic Law if he was denied access to joint custody of his child only because at the time of his cohabitation with the mother and the child there was no possibility for him and the mother to establish joint custody and after the separation the mother is not (any longer) willing, although it is in the best interests of the child. In other respects, the standard is constitutional. The fact that custody is generally transferred to the mother of an illegitimate child does not violate the father's parental rights, because it cannot generally be assumed that non-married parents live in a domestic community and want to care for the child together. If joint custody is desired, the parents can already declare joint custody at birth by means of concordant declarations of custody. The provision requiring the parents' consensus on joint custody is also constitutional, because joint custody presupposes a minimum degree of agreement between the parents in the interests of the child.