Dec 3, 2010
German child custody laws discriminate against single fathers and should be changed, the European Court of Human Rights ruled on Thursday.
The six to one decision was in favour of a 45-year-old father from Cologne. He has has been trying to gain custody of his 14-year-old daughter for eight years after a state court denied him dual custody in 2003.
According to current German law, unmarried fathers can only get partial or full custody of their children with the consent of the mother, which the man did not have.
“There is no reason to keep the right to child custody from a father when he wants to take on this responsibility,” the father in the case said. “The German government has known about this problem for ten years. But I fear that only a minimal solution will be found and the right of the mother will remain in the foreground.”
Germany’s high court in Karlsruhe codified this law in 2003, explaining that giving mothers a veto avoided long-term legal battles between unmarried couples. A single father pays child support but has no right to make any decisions and can also be prevented from seeing his children. Austria, Switzerland and Liechtenstein are the only other countries in Europe with similar custody laws.
Meanwhile child custody is generally split between married couples.
But in a country where the Federal Statistics Office shows that every third child was born out of wedlock in 2008, the law has come under increasing pressure.
The court in Strasbourg has given Germany three months to review the law.
Justice Minister Sabine Leutheusser-Schnarrenberger reacted on Thursday by calling for a fundamental review of rights for single fathers.
Väteraufbruch, an association dedicated to the legal rights of fathers was optimistic about the verdict.
“Germany won’t be able to do anything but go along with the common legal situation in Europe,” Väteraufbruch's Ulrich Mueller said, adding that the country should institute an “automatic dual child custody similar to that in France.”
Mr.Rebates
Showing posts with label Germany. Show all posts
Showing posts with label Germany. Show all posts
Wednesday, October 20, 2010
In the name of the father
4 Aug 10
German men have become the weaker sex. Not even the Constitutional Court decision opening the way for unmarried fathers to gain joint custody of their children can change that. But that doesn’t make fathers any less important, writes Tissy Bruns from Der Tagesspiegel.
Every child knows that mum and dad are different and boys and girls need, want and love those subtle differences between parents. Adults, on the other hand, are pretty unsure about what the guiding principles of parenthood should be.
During break-ups and custody battles, women, whether they are housewives, employed, or single parents, are seen mainly as 'mothers' in Germany and they usually win the legal battle by virtue of this.
Our ideas about what is motherly and what motherhood means are much clearer than they are about 'fatherhood' and 'fatherly' qualities. Men choosing to be fathers have become the weaker sex in modern German society.
The Constitutional Court ruling on Tuesday cannot suddenly suspend this crucial distinction, despite making it easier for unmarried father to win joint custody of their children. But the father is still important – because the emphatic lessons and experiences of women's emancipation count for fathers too. More rights mean more responsibility – in this case taking care of children.
Traditional father roles have been steamrollered, first by the catastrophes of the last century and then by the women's liberation movement. The authoritarian patriarch, who thinks dealing with small children is unmanly and is mainly responsible for handing out punishments, is long since outdated.
The patriarchal figure is even disappearing among Germany’s immigrant populations, which have often grown up with such archetypes. Nowadays young women with children have few qualms to leave such machos. This female victory march has also destroyed the idea of the “family-breadwinner,” a figure who dominated the first decades of post-war Germany, despite the enshrinement of equality in the constitution.
And the ideal of the fatherly "protector" – the man who shows the growing child the world and guides him along the path to working life – is no longer untouchable either. Mothers can and do perform this role too – and much too often they do it alone.
But an ideal "androgynous" parenthood, in which parents are not only equal before the law, but actually equal, has not yet been established despite a growing number of "modern" fathers. The more diffuse our image of fatherhood has become, the clearer we see that fathers, or father figures, are missing from our families, our childcare facilities, and our schools.
The lack of a father is a disadvantage that many single mothers feel painfully because they cannot make up for it, despite their best efforts. That a lot of mothers engage in long legal battles to separate children from their fathers only makes matters worse.
Perhaps young girls and boys have a better idea of what makes a good dad than men and women. But adults should at least know that fatherhood only develops and proves itself worthy through interaction with children – it does not come out of the economic, social or legal domination of women. Fortunately the old patriarchal roles have disappeared.
But that makes room for a new, hopeful development that can be seen in court custody battles, in applications for parental leave benefits, and in many families. Men really want to be fathers, not patriarchs, breadwinners or disciplinarians.
The fundamental differences remain, however. In all cultures and societies, mothers have been given the role of looking after children. Mothering means love, care, and self-sacrifice. But until the invention of paternity tests, there was not even the slightest certainty about what and who a father should be.
Instead, there were just powerful cultural mores that have changed enormously over the centuries. It is also a kind of emancipation if men can be fathers without having to be patriarchs and breadwinners first. But mothers have to want that too.
German men have become the weaker sex. Not even the Constitutional Court decision opening the way for unmarried fathers to gain joint custody of their children can change that. But that doesn’t make fathers any less important, writes Tissy Bruns from Der Tagesspiegel.
Every child knows that mum and dad are different and boys and girls need, want and love those subtle differences between parents. Adults, on the other hand, are pretty unsure about what the guiding principles of parenthood should be.
During break-ups and custody battles, women, whether they are housewives, employed, or single parents, are seen mainly as 'mothers' in Germany and they usually win the legal battle by virtue of this.
Our ideas about what is motherly and what motherhood means are much clearer than they are about 'fatherhood' and 'fatherly' qualities. Men choosing to be fathers have become the weaker sex in modern German society.
The Constitutional Court ruling on Tuesday cannot suddenly suspend this crucial distinction, despite making it easier for unmarried father to win joint custody of their children. But the father is still important – because the emphatic lessons and experiences of women's emancipation count for fathers too. More rights mean more responsibility – in this case taking care of children.
Traditional father roles have been steamrollered, first by the catastrophes of the last century and then by the women's liberation movement. The authoritarian patriarch, who thinks dealing with small children is unmanly and is mainly responsible for handing out punishments, is long since outdated.
The patriarchal figure is even disappearing among Germany’s immigrant populations, which have often grown up with such archetypes. Nowadays young women with children have few qualms to leave such machos. This female victory march has also destroyed the idea of the “family-breadwinner,” a figure who dominated the first decades of post-war Germany, despite the enshrinement of equality in the constitution.
And the ideal of the fatherly "protector" – the man who shows the growing child the world and guides him along the path to working life – is no longer untouchable either. Mothers can and do perform this role too – and much too often they do it alone.
But an ideal "androgynous" parenthood, in which parents are not only equal before the law, but actually equal, has not yet been established despite a growing number of "modern" fathers. The more diffuse our image of fatherhood has become, the clearer we see that fathers, or father figures, are missing from our families, our childcare facilities, and our schools.
The lack of a father is a disadvantage that many single mothers feel painfully because they cannot make up for it, despite their best efforts. That a lot of mothers engage in long legal battles to separate children from their fathers only makes matters worse.
Perhaps young girls and boys have a better idea of what makes a good dad than men and women. But adults should at least know that fatherhood only develops and proves itself worthy through interaction with children – it does not come out of the economic, social or legal domination of women. Fortunately the old patriarchal roles have disappeared.
But that makes room for a new, hopeful development that can be seen in court custody battles, in applications for parental leave benefits, and in many families. Men really want to be fathers, not patriarchs, breadwinners or disciplinarians.
The fundamental differences remain, however. In all cultures and societies, mothers have been given the role of looking after children. Mothering means love, care, and self-sacrifice. But until the invention of paternity tests, there was not even the slightest certainty about what and who a father should be.
Instead, there were just powerful cultural mores that have changed enormously over the centuries. It is also a kind of emancipation if men can be fathers without having to be patriarchs and breadwinners first. But mothers have to want that too.
Avoid getting tripped up by German family law
Sept 21, 2010
Divorces are difficult anywhere in the world, but they are especially challenging in foreign countries for non-citizens who are unfamiliar with the national laws.
Jörn Vinnen, a certified family law specialist and certified succession law specialist at Schneider Stein & Partner in Hamburg, helps local and international clients navigate Germany's legal system.
"We're an old practice that has always specialized in family and inheritance law," says Vinnen. "We have 12 lawyers and most of us are certified specialists. We also deal with international cases, but we're not an international law firm."
Schneider Stein & Partner opened in 1955. The phenomenon of international marriages on a large scale is relatively new and is even newer when it comes to inheritance issues. As such, it is unusual to find large firms focused on family law in Germany.
In addition to German and English, Vinnen also serves clients in Dutch.
In his 15 years as a lawyer, Vinnen has noticed that many of his expatriate clients in Germany are caught unprepared by the German legal system when they have a child born out of wedlock with a German mother, "or they get married without having a proper idea of what they've done."
"It's a completely different legal system that has completely different approaches to the usual questions that arise during separation, especially regarding children born out of wedlock," says Vinnen. "It is a strange idea to many expats that they have to pay alimony to a child's mother based on her previous income for three years, or in some cases, five to six years."
German courts grant relatively strong alimony claims, as well as spousal claims, adds Vinnen.
"We often find that English and American clients are used to paying or getting lump sums, this idea has a lower priority in Germany," he says. "Most divorce cases in Germany do not see a lump sum full-stop solution. Sometimes, we have lifelong obligations."
Despite a recent decision by the European Court of Human Rights, Germany and Austria are now the last two countries with sole custody laws for mothers of children born out of wedlock.
"Often, when I deal with Americans, they think it's not possible that they have no custodial rights," says Vinnen. "Germany has now been forced to change it in the long run and so it will."
The bias towards unmarried mothers in Germany stems from an idea that the legal identity of a person is tied to birth. The tradition differs from countries such as France, where Napoleon drafted "anti-female" laws because he did not like the idea of women gaining inheritance, says Vinnen.
"They could only inherit the right to use things, but not the property," he explains.
There is also a special system of asset division in Germany, which is also favourable towards prenuptial agreements.
"Some of our clients come from countries where prenups are unknown, like the UK, or countries where prenups useless because the courts won't apply them anyway," says Vinnen. "In Germany, they are accepted and can bring a marriage’s economic solidarity almost down to a friendship."
Another surprise for expats coming from different legal systems is that in Germany, litigants can choose the legal system for trying their cases.
"We are very tolerant towards foreign family laws," says Vinnen. "Two Iranians can have a Sharia divorce according to Iranian law. In an English or American court, it is generally the local country's laws, nothing else."
Although a marriage can be performed under foreign law in Germany, Vinnen recommends clients to pursue their cases in the country of the origin of the applicable law. It is necessary to avoid so-called forum shopping, where the litigant tries to find the worst legal system for the other spouse.
"Each country has its own traditions, such as whether there is a need to equalise, but it's an international world," says Vinnen. "The rules that apply have to be international. Sometimes our involvement ends quickly when we avoid German law and try to bring it elsewhere because it is preferable for our clients. That might not nice for us because our consultation may end very quickly, but it is in our client's best interest."
Although German lawyers may have foreign qualifications, if cases are taken elsewhere, it is a mistake not to take a local lawyer who knows the judges and has no limitations in English. The majority of Schneider Stein's cases involve German clients, but 25 percent of them have an international connection involving a spouse with foreign citizenship.
"I've had clients I've never seen in my life, such as one at a US Air Force base in the Far East who has a child here," says Vinnen.
Around two-thirds of Vinnen's practiceare divorce cases. Aside from family law, he also deals with foreigners who want to find out what happened to German parents and relatives, settling paternity suits and claims for compulsory portions and advising clients on prenups or settlements for division of assets.
In addition, his cases also include those dealing with the equalisation of old-age pension funds. Foreigners who pay into German state pension funds and get divorced elsewhere can claim equalisation anywhere. Other cases include child abduction and claims for child support for German children overseas, custody and right of access, as well as probate and inheritance law.
"I've been a family lawyer for 15 years," says Vinnen. "If one wants to be a millionaire, one should not specialise in this field of work. But there are no fields of practice more interesting than family and inheritance law. It is also a personal task to resolve such matters and to be responsible. Our clients sometimes call us three times a day. This is the calling of your life."
He adds that he and his colleagues are all family people and refuse to work 72 hours a week.
"All of us know family is more important than jobs," says Vinnen. "We try to not make the mistakes that some of our clients do. Some of our clients are partners in international law firms and they get divorced way more often. A good life work-life-balance is essential and we are convinced that we are better family lawyers if we maintain a happy family life."
Divorces are difficult anywhere in the world, but they are especially challenging in foreign countries for non-citizens who are unfamiliar with the national laws.
Jörn Vinnen, a certified family law specialist and certified succession law specialist at Schneider Stein & Partner in Hamburg, helps local and international clients navigate Germany's legal system.
"We're an old practice that has always specialized in family and inheritance law," says Vinnen. "We have 12 lawyers and most of us are certified specialists. We also deal with international cases, but we're not an international law firm."
Schneider Stein & Partner opened in 1955. The phenomenon of international marriages on a large scale is relatively new and is even newer when it comes to inheritance issues. As such, it is unusual to find large firms focused on family law in Germany.
In addition to German and English, Vinnen also serves clients in Dutch.
In his 15 years as a lawyer, Vinnen has noticed that many of his expatriate clients in Germany are caught unprepared by the German legal system when they have a child born out of wedlock with a German mother, "or they get married without having a proper idea of what they've done."
"It's a completely different legal system that has completely different approaches to the usual questions that arise during separation, especially regarding children born out of wedlock," says Vinnen. "It is a strange idea to many expats that they have to pay alimony to a child's mother based on her previous income for three years, or in some cases, five to six years."
German courts grant relatively strong alimony claims, as well as spousal claims, adds Vinnen.
"We often find that English and American clients are used to paying or getting lump sums, this idea has a lower priority in Germany," he says. "Most divorce cases in Germany do not see a lump sum full-stop solution. Sometimes, we have lifelong obligations."
Despite a recent decision by the European Court of Human Rights, Germany and Austria are now the last two countries with sole custody laws for mothers of children born out of wedlock.
"Often, when I deal with Americans, they think it's not possible that they have no custodial rights," says Vinnen. "Germany has now been forced to change it in the long run and so it will."
The bias towards unmarried mothers in Germany stems from an idea that the legal identity of a person is tied to birth. The tradition differs from countries such as France, where Napoleon drafted "anti-female" laws because he did not like the idea of women gaining inheritance, says Vinnen.
"They could only inherit the right to use things, but not the property," he explains.
There is also a special system of asset division in Germany, which is also favourable towards prenuptial agreements.
"Some of our clients come from countries where prenups are unknown, like the UK, or countries where prenups useless because the courts won't apply them anyway," says Vinnen. "In Germany, they are accepted and can bring a marriage’s economic solidarity almost down to a friendship."
Another surprise for expats coming from different legal systems is that in Germany, litigants can choose the legal system for trying their cases.
"We are very tolerant towards foreign family laws," says Vinnen. "Two Iranians can have a Sharia divorce according to Iranian law. In an English or American court, it is generally the local country's laws, nothing else."
Although a marriage can be performed under foreign law in Germany, Vinnen recommends clients to pursue their cases in the country of the origin of the applicable law. It is necessary to avoid so-called forum shopping, where the litigant tries to find the worst legal system for the other spouse.
"Each country has its own traditions, such as whether there is a need to equalise, but it's an international world," says Vinnen. "The rules that apply have to be international. Sometimes our involvement ends quickly when we avoid German law and try to bring it elsewhere because it is preferable for our clients. That might not nice for us because our consultation may end very quickly, but it is in our client's best interest."
Although German lawyers may have foreign qualifications, if cases are taken elsewhere, it is a mistake not to take a local lawyer who knows the judges and has no limitations in English. The majority of Schneider Stein's cases involve German clients, but 25 percent of them have an international connection involving a spouse with foreign citizenship.
"I've had clients I've never seen in my life, such as one at a US Air Force base in the Far East who has a child here," says Vinnen.
Around two-thirds of Vinnen's practiceare divorce cases. Aside from family law, he also deals with foreigners who want to find out what happened to German parents and relatives, settling paternity suits and claims for compulsory portions and advising clients on prenups or settlements for division of assets.
In addition, his cases also include those dealing with the equalisation of old-age pension funds. Foreigners who pay into German state pension funds and get divorced elsewhere can claim equalisation anywhere. Other cases include child abduction and claims for child support for German children overseas, custody and right of access, as well as probate and inheritance law.
"I've been a family lawyer for 15 years," says Vinnen. "If one wants to be a millionaire, one should not specialise in this field of work. But there are no fields of practice more interesting than family and inheritance law. It is also a personal task to resolve such matters and to be responsible. Our clients sometimes call us three times a day. This is the calling of your life."
He adds that he and his colleagues are all family people and refuse to work 72 hours a week.
"All of us know family is more important than jobs," says Vinnen. "We try to not make the mistakes that some of our clients do. Some of our clients are partners in international law firms and they get divorced way more often. A good life work-life-balance is essential and we are convinced that we are better family lawyers if we maintain a happy family life."
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