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

The complainant of the legal process (biological father) first tried to recognize the paternity for a child born in November 1998. As the mother of the child did not want a determination of paternity, the complainant made an application to the local court for a declaration that he was the father of the child. He states that it has been a planned child, he made all the preparations for the birth together with the mother and he also had been present when the child was born. The mother pleaded lack of knowledge of all the submissions of the complainant and pointed out that meanwhile, in October 2000, another man had acknowledged the paternity. The local court dismissed the action because the determination of a different paternity is barred. It was also inadmissible for the complainant to challenge the paternity of the person acknowledging paternity, since under § 1600 of the Civil Code only the man whose paternity exists, the mother if the child and the child itself were entitled to challenge.  
The FCC held that the biological father, together with his child, is also a family of the kind protected by Article 6.1 of the Basic Law if there is a social and family relationship between him and the child.  § 1685 of the Civil Code in the version of the Act Reforming the Law of Parent and Child of 16 December 1997 was incompatible with Article 6.1 of the Basic Law to the extent that it excluded the biological father from the group of persons permitted contact with the child, even if there is or has been a social and family relationship between him and the child. § 1600 of the Civil Code (1997) was incompatible with Article 6.2 sentence 1 of the Basic Law to the extent that without exception it excludes the natural father of a child who is not the legal father from challenging an acknowledgement of paternity.  § 1711 of the Civil Code does not violate Article 6.1 of the Basic Law as it can be interpreted in conformity with the constitution.