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

The constitutional complaint concerned the question of whether it is compatible with the Basic Law for a parent who refuses contact with his or her child to have his or her contact obligation enforced by means of coercion. The complainant had two children, who were both minors, from his current marriage. The complainant also had a son from an extramarital relationship, who was born in February 1999. The complainant has recognized his paternity and payed child maintenance for his son. The complainant refuses, however, to have contact with his illegitimate son.  The local court dismissed the application by the child´s mother for an access arrangement between the child and its father because an enforced contact was not in the child´s best interests. The higher regional court obtained an opinion from an expert who said that contact in the presence of a social worker would not be detrimental to the child, so it was decided that the father had to have contact with his son. If he refused the contact a 25 000 Euro fine is threatened. 
The FCC held that the duty of a parent to have contact with his child which is laid down in § 1684 of the Civil Code is an admissible specification of the responsibility from Article 6.2 of the Basic Law. The encroachment of the fundamental right to protection of personality contained in Article 2.1 in conjunction with the Article 1.1 of the Basic Law, which is associated with the imposition of an obligation on a parent to have contact with his or her child, is justified by the responsibility for his or her child imposed on the parent by Article 6.2 sentence 1 of the Basic Law and the child’s right to parental care and upbringing. It is reasonable to oblige a parent to have contact with his or her child if this is in the child´s best interests. If coercive measures are necessary to force an unwilling parent to have contact with a child, this contact is not usually in the best interests of the child. The encroachment on the parent’s fundamental right to protection of his or her right of personality which results from the threat to apply coercive measures is not justified in this context unless there are sufficient indications which suggest that enforced contact will be in the child’s best interests in an individual case.  § 33.1 Sentence 1 and § 33.3 of the Act of Non-Contentious Jurisdiction are to be interpreted in conformity with the constitution as meaning that compulsory enforcement of the duty of contact must be avoided unless there are sufficient indications that enforced contact would be in the child´s interest.  In this case the court misjudged that it was not enough for a justification that it won´t cause any damage, but it must be in the child´s interest. The complaint was therefore successful.