Paternity after separation: protection against violence; parental involvement; related offspring; economic assistance; child's right to be heard

According to § 1671.4 of the Civil Code the parental custody should be assigned to one parent alone. The judgement of the FCC was based on several requests by courts according to Article 100 of the Basic Law. In all proceedings, parents applied for joint custody of their children after their divorce. The courts held that they would like to comply with the parents' proposal, but see themselves prevented from doing so by § 1671.4 of the Civil Code which required that in case of a divorce, only one parent could have custody of a child. The courts saw the prohibition to assign joint parental custody to both parents after divorce without permitting exceptions as a violation of the parental right guaranteed in Article 6.2 of the Basic Law as a fundamental right to care and upbringing of children. Moreover, such a sweeping intervention wasnot covered by the state's guardianship, which only justifies interventions that are necessary in the interest of the child's best interests. They argued that individual cases, such as those in the original proceedings, were conceivable in which a unilateral transfer of custody would be contrary to the child’s best interests and the joint exercise of custody would be to the child’s advantage. For these reasons, they considered the provision to be unconstitutional. 
The FCC held, that Article 6.2 of the Basic Law not only gives parents the right to parental responsibility, but also imposes a duty on them to find a reasonable solution that is in the child’s best interests. Article 6.2 of the Basic Law presumes a standard case in which the child lives in a family community with parents, which guarantees best that the child grows to become an autonomous personality. The child’s ties of affection to mother and father can continue regardless of the separation and divorce of its parents. If parents decide by mutual agreement to retain joint parental care, this regularly speaks in favour of the exercise of parental responsibility. In these cases, there is no need for the state to decide between conflicting interests: the state is not required in exercising its guardianship to exclude one parent from the care and upbringing of the child. Such a decision would inevitably affect the ties of the child, who, despite good relations with both parents, was supposed to choose one. It is true that in the majority of divorce proceedings the transfer of custody to one parent is an appropriate solution. This, however, does not justify the exceptionless regulation of § 1671.4 of the Civil Code. In addition, according to § 1696 of the Civil Code, the courts have the possibility to change their orders at any time during the duration of parental custody if they consider this to be appropriate in the interest of the child. 
The mandatory transfer of custody to one parent without any exception was therefore incompatible with the parental right of Article 6.2 sentence 1 of the Basic Law.