Comment: I think: no custody of illegitimate fathers from birth!

Incidentally, there was one Reform proposal already on the table in 2013 and was also rejected there. Then, as now, reference is made to Section 1626a of the German Civil Code (BGB): "It is not possible for fathers born in wedlock to obtain joint custody of a child without the consent of the child's mother by court order." In the same way, I want to cite Section 1684 (1) of the German Civil Code: "The child has the right to interact with each parent; each parent is obliged and entitled to interact with the child." That means: fathers who are not married to us already have the right to obtain custody against the will of the mother. But not just like that, but when a court confirms that it is in the best interests of the child.

But now to the current reform proposal:

The first thesis is: Parental custody should be shared between the legal parents of a child from the start. So far so good. Translated it means: It's about that Unmarried fathers who are separated or divorced from the birth of the child also automatically have custody just like the mothers. So a Equality issue. They want the same rights as mothers. 50 percent of the custody and thus also 50 percent of the education mandate from birth. I can only say: SUPER! I think it's absolutely timely when mothers and fathers want to share parental responsibility 50/50. Unfortunately, the reality looks absolutely out of date.

First of all, you need a few numbers? Who are we really talking about here:

* The numbers come from a Press release of the Association of Single Mothers and Fathers, Bundesverband e.V

With this 8.6 percent, all those unmarried fathers remain who could not agree on custody with the mother, where there were conflicts or who did not submit a declaration of custody out of sheer ignorance or disinterest. Active countermeasures are already being taken against ignorance. This can be seen from the fact that the number of joint custody declarations has increased in recent years. So we are talking about a reform that primarily affects illegitimate fathers who show clear disinterest in their children and those from conflict-ridden relationships. Again: this reform proposal does not apply to fathers who are unmarried but in a relationship and who have been able to agree on custody with the mother of the child.

Here is a quote from Daniela Jaspers, the federal chairwoman of the VAMV (Association of Single Mothers and Fathers). She sums it up nicely: "We still consider it a good thing when parents consciously make the decision that they want to care for children together. By marrying or joint custody declaration, over 91 percent of parents do this from the child's year of birth, others later If they don't, the probability is high that there are good reasons against mutual concern, for example alcohol, violence, a highly contentious separation or because parents hardly know each other. "

And this is exactly where my resistance to this reform begins.

Why? That follows now. Do you have a different opinion? Then write to me and us on our social channels Instagram and Facebook. But please read the article to the end first. Here we go:

1st point: common concern, but not at any cost!

Yes, a common concern is to be aimed for, but just not for every price. If that means that a rapist suddenly gets access to the raped woman and the child resulting from the rape, then that is not okay. With regard to violence in the family, children and women are already not sufficiently protected. Because in Germany The right of access still stands above protection against violence. If the protection against violence were to take precedence over the right of access, I would not see this attempt at reform as that problematic.

2nd point: The right of access takes precedence over protection against violence

Even now, without this reform, decisions are constantly being made that weigh up protection against violence and rights of access. And which do not serve the best interests of the child. On the contrary: You endanger the child's well-being. An example: According to current German law, even a convicted violent criminal can demand contact with his children from prison – possibly even against the will of the children. If he were now automatically custodial from birth, the mother's hands would be tied even more to protect her children and herself from dealing with this man. The only thing that helps is to establish that the child is at risk – and that turns out to be very difficult in reality. In many cases, the hurdles for accepting the risk are set very high by the courts and the risk is denied in cases of doubt.

Why has so far only the mother been given custody from birth?

The assignment of the automatic custody declaration to the mother is due to the legal security of the child. The mother is clearly identifiable as the parent of this child through the process of birth. This does not apply to the father. Now, however, this reform demands that unmarried mothers and fathers be treated on an equal footing on this point, which, in my opinion, ignores real life. While the mother can be clearly identified as the parent, paternity must first be established or recognized. If the unmarried father is not present at the birth, he cannot be identified either. If the reform were to be implemented, only the illegitimate fathers who could not reach an agreement with the mother of their child beforehand would benefit.

Of course, there is also the situation that the unmarried mother does not feel ready for parental care and gives her child to the father. If he now has no custody, this can of course be problematic for him. But if you compare these cases with the cases of how often a mother is a single parent from birth, it quickly becomes apparent that the negative effects of this reform definitely do not outweigh this small positive effect.

3rd point: The judicial proceedings would be purely negative

Let's assume: The reform will be implemented, all fathers will have custody from birth. This means that both are responsible for the child and, through the reform, are obliged (!) By law to come to an agreement on the child. So far, according to Section 1627 of the German Civil Code (BGB), parents have to strive for an agreement, but not forced to do so by law will. An agreement with the reform proposal would be imperative. So even with a mentally ill, drug addict, or violent father, the mother must actively, well, force an agreement on the children. If that doesn't work, she'll have to initiate proceedings to obtain sole custody. So the mother has to assert herself before the court why dealing with the father is not desirable for the child's best interests. I have already explained why this is so difficult.

According to currently applicable law, in this case the father must present to the court why, in his opinion, joint custody with the mother, despite her negative attitude, is beneficial to the child's best interests. A much more positive process, which also has a positive and not negative effect on the child's well-being as in the first case: a person struggles to see his child.

Of course, there are also situations in which mothers use violence against their children and the children need to be protected from the mother. Just like the fact that mothers actively prevent the father's participation in the life of their children and deny contact. This is a very important topic that urgently needs more attention. In this article, however, I am mainly concerned with the father's side and why I am against the fact that illegitimate fathers are automatically granted custody from birth.

4th point: The family judges are not qualified enough

Another point which, from my point of view, speaks clearly against this reform is that insufficient qualification of the family judges. Family law is not a compulsory subject in law studies and is therefore very rarely asked for in the state legal examination. The same goes on in the traineeship: Child law is not part of the compulsory subject. In addition, unlike, for example, in insolvency law, there are no minimum requirements for family judges when starting their career and there is also no obligation to undertake further training. Everything is done on a voluntary basis, but the judges are not released for voluntary training either.

As early as 2016, the Bundestag decided that the government should submit a new law that the family judges must be better qualified. Nothing has happened to this day. That means that the judges usually no experience or training in these complex family law issues to have. Accordingly, the judgments are usually not sufficiently differentiated and the best interests of the child are not met. With the onset of this reform, differentiated jurisprudence will be needed even more urgently, since then, in my opinion, the child's well-being will be at risk even more frequently.

In summary: this reform would be a catastrophe!

I can do a reform that automatically gives rapists, violent men and fathers in conflict-ridden relationships the right to the shared care of the child do not get any good. Of course, I am also for a shared concern and for that Fathers can finally take responsibility across the board and take care of their children of their own accord. As many do already. But why it has to be carried out on the mother's back in the few other cases is not clear to me. If our society were structured differently and not so patriarchal, if we would live in an ideal world, both parents would have custody from birth. Unfortunately, that's not how it is – and it's real We are still a long way from equality. And as long as children and mothers are not adequately protected and the child’s well-being actually comes first, I strictly reject automatically transferred custody for unmarried fathers from birth!

This article originally appeared on Eltern.de.