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 was compatible with the Basic Law that, under §§ 1626a.1 No. 1, 1672.1 of the Civil Code, parental care of illegitimate children could not as a rule be transferred to the father, even or solely, against the mother's will. The complainant was the father of a son born out of wedlock in 1998. The parents separated while the mother was still pregnant. The son has lived with his mother since his birth, but also had regular contact with his father, who acknowledged paternity. The mother did not give her consent to the exercise of joint parental care. Because the mother intended to move with the joint child, the complainant applied to the family court for partial deprivation of the mother's right of custody and for the transfer of the right of residence to himself; in the alternative, he sought the transfer of sole custody or the substitution of the mother's required consent to joint custody. The family court dismissed the applications on the ground that consent was lacking. There were no grounds for depriving the mother of custody. The appeal lodged against this with the higherregional court was unsuccessful.
The FCC held that the §§ 1626a.1 No. 1, 1672.1 of the Civil Code were incompatible with the parental right under Article 6.2 of the Basic Law. 
The fundamental transfer of parental custody of an illegitimate child to its mother alone and the absence of the transfer with effective acknowledgement of paternity by operation of law is constitutionally unobjectionable if the father was granted the possibility of judicial review in the individual case based on the best interests of the child. 
The legislative decided against joint custody by operation of law with effective acknowledgement of paternity in accordance with §§ 1564 et seq. of the Civil Code. It could not be assumed that the acknowledging father and the mother are always willing to assume joint custody. A transfer by operation of law could therefore lead to a decline in voluntary acknowledgements and increase the need for proceedings under § 1600d of the Civil Code, which would put a strain on the relationship between the parents and could have a negative impact on the child's welfare.
However, with the consent requirement of § 1626a.1 No. 1 of the Civil Code as the equivalent of a marital union, the legislature placeed the father's parental rights without the possibility of judicial review and thus disproportionately behind those of the mother, although this is not required for reasons of the child's welfare. 
The provision of § 1672 I of the Civil Code also required the consent of the mother for a transfer of sole custody of an illegitimate child and thus violated the parental rights of the father. The general exclusion of the father also could not be justified on the grounds that otherwise the mother-child relationship would be burdened by the mother's constant uncertainty.
It must be noted, however, that a complete transfer is accompanied by a serious encroachment on the mother's parental rights even irrespective of any risk to the child's welfare. Against this background, it is true that the regulation was incompatible with the father's parental rights. However, a transfer of sole care to the father is only justified if there is no other possibility for safeguarding the father's parental rights that is less detrimental to the mother's parental rights and, furthermore, weighty reasons in the best interests of the child require a withdrawal of custody.