Illegitimate Paternity Rules in Germany
Illegitimate Paternity Rules in Germany
Illegitimate Paternity Rules in Germany
Illegitimate
Paternity Rules in Germany
I. BASICS ....................................................................................................................................... 1
A. Fact Pattern ............................................................................................................................. 1
B. Presumption of Paternity ........................................................................................................ 2
II. ESTABLISHMENT OF PATERNITY .................................................................................. 2
A. Paternity established or acknowledged ................................................................................... 2
B. Paternity Testing ..................................................................................................................... 3
C. Challenging Paternity.............................................................................................................. 4
III. RIGHTS AND OBLIGATIONS ............................................................................................ 5
A. Custody, Childs Name and Law of Succession ..................................................................... 5
B. Support Obligations ................................................................................................................ 6
C. Visitation Rights ..................................................................................................................... 9
IV. ENFORCEMENT OF SUPPORT ORDERS ..................................................................... 10
A. Garnishment ......................................................................................................................... 10
B. UIFSA / URESA / AUG ....................................................................................................... 11
V. ANNEXES ............................................................................................................................... 12
A. Child Support Guidelines January 2008 thru January 2010 (new law) ................................ 14
B. Conversion of pre-2009 child support orders ....................................................................... 15
C. Child Support Guidelines January 2002 thru January 2007 (old law) .................................. 16
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I. BASICS
Effective July 1, 1998 tremendous changes have taken place in the area of the German
Family Law. Basically all distinctions between legitimate and illegitimate children have been
abolished in Germany. In recent rulings the European Court of Human Rights and the German
Constitutional Court have strengthened the rights of fathers with respect to their illegitimate
children.
A. Fact Pattern
a. If a mother names a man as the father of her child, and he does not acknowledge his
paternity, he may be sued by the mother herself or by the child (either represented by the mother
or the Youth Office as the official legal representative) in the Family Division of the Local Court
(Familiengericht) for the establishment of his paternity. If the Youth Office initiates the
procedure IAW 1712 BGB (Brgerliches Gesetzbuch, German Civil Code), then the child's
mother would neither be the plaintiff nor the child's representative and, therefore, can be a
witness in favor or against the man.
b. The consequences of paternity, e.g., child support, can only be asserted when the man
acknowledged his paternity or was established as the child's father by a court of competent
jurisdiction or was married to the mother at the time she gave birth to the child ( 1592 BGB).
But once paternity has been acknowledged or established, support claims against the child's
father may be exercised retroactively, back to the date when the child was born ( 1613 BGB).
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B. Presumption of Paternity
a. MARRIED MOTHERS. 1592, 1593 BGB provide that any children who are born
during a valid marriage of the mother or within 300 days after her husband's death are considered
to be her husband's children. An exception applies where the mother remarried within the 300
days following the finality of her prior marriage. Only in such a case shall the new husband and
not the ex-husband be considered the biological father.
c. PENDING DIVORCE. Moreover, it has become easier for a man to contest his
paternity to any child his wife gives birth to during a pending divorce case on condition that the
true biological father agrees to voluntarily acknowledge his paternity and follows the
corresponding procedural rules ( 1599 BGB). Yet, the acknowledgment wont become effective
until the divorce is final.
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summons if the member's attendance is compulsory under German law. This means that the
commander concerned is required to monitor and ensure the soldier's compliance with the
summons. In a given case, the commander is expected to have his subordinate escorted to the
appointed place under guard, if that soldier fails to obey the German court order. Alternatively, a
member of the US-Forces or civilian component may be imprisoned for contempt of court
according Article 34 para. 2 of the NATO Status of Forces Supplementary Agreement. 178
para. 1 FamFG reads:
"(Examinations to Establish Descent). As far as it is necessary for the establishment of decent, every person
has to tolerate a physical examination, particularly the withdrawal of blood samples, unless the physical examination
would constitute an unreasonable demand."
c. If the alleged father resides abroad and refuses to take a court ordered blood test, he
may be found to be the father nevertheless because he is obstructing the obtaining of evidence
(BGH NJW 1986, 2371).
B. Paternity Testing
a. BLOOD TEST. A court ordered blood test will have to be performed in accordance
with the German Guidelines for Expert Opinions on Decent (Richtlinie fr die Erstattung von
Abstammungsgutachten published in FamRZ 2002, 1159) by the Robert Koch Institute. It is
highly recommended that the baby be at least 8 months old before the blood test is done. In the
Kaiserslautern area the Institute for Forensic Medicine of Professor Dr. Christian Rittner
(Institut fr Rechtsmedizin Prof. Dr. Christian Rittner ) performs the most tests. It is located
on Kerststr. 27-31, 67655 Kaiserslautern (Phone: 0631-68045; Email: info@rittner-
vaterschaft.de). The costs for a court ordered testing approximately amount to 1,700.
b. SWAB TEST. State of the art paternity tests are swab tests. They are less expensive
than blood tests and less burdensome. Moreover, they are as reliable as blood tests and can even
be performed on a newborn baby.
1
More information can be obtained on the internet page: http://www.mbc.org The Minnesota based Memorial
Blood Centers is an organization that charges $495.00 for a paternity test ($165 per person).
The Frankfurt based company Humatrix sells their swab test kits for 20.00. Yet, the test itself will cost around
740.00.
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C. Challenging Paternity
a. If paternity has been established by court order, it can no longer be challenged once the
appeal time (30 days following the service of the order) has run out.
b. The father can challenge his voluntarily acknowledged paternity in court IF he can
provide reasons for his non-paternity. The Statute of Limitation for any action is two years after
the father first became aware of the specific fact on which he bases his challenge ( 1600b BGB).
The father then has the full burden of his non-paternity, which practically would require a
negative paternity test. In such a case the contesting father would be the petitioner and would
have to make a security payment in the amount of at least 2,500.00 for the costs of the lawsuit
and paternity test before the court will accept his complaint. If the father was aware of his non-
paternity but nevertheless acknowledged paternity voluntarily, he may still contest/challenge his
paternity but might remain financially liable to provide child support (Judgment of October 25,
2001, OLG Kln, 14 UF 106/01).
c. If the mother is married to another man when she gave birth to the child or that man
acknowledged his paternity and there exists a family like relationship between that man and the
child, then the childs biological father cannot challenge that mans paternity ( 1600 para. 2
BGB). Instead that man, the mother or the mother on behalf of the child need to take some
action first, before the actual father can acknowledge his paternity or before it can be established
in a court of law. The Statute of Limitations for each of these persons is two years as well.
However, for the child the time is tolled until it turns 18 ( 1600b BGB).
d. Secretly done paternity tests or those without the expressed consent of all parties
concerned (alleged father, mother, child) are not admissible in German court (BGH NJW 2005,
497). However, if the mother acknowledges thereafter having slept with other men, a retrial may
be granted (BGH NJW 2006, 1742). Yet, if the father had known this for two years, the Statute
of Limitations ( 1600b BGB) has run out (BGH 2006, 1734).
e. 1598a BGB allows all parties concerned (father, mother, child) to request a paternity
test to clarify any decent issues. Yet, any negative outcome will not remove the paternity
automatically. Paternity still needs to be challenged in a separate legal action.
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a. CUSTODY. If the mother agrees, it is also possible for the father to get joint custody
( 1626 a BGB). However, this does in no way affect a parent's support obligations. Further, in
most cases the mother will disagree for it does not seem plausible to have joint custody if the
parents will soon live on different continents and if there has never been enough common ground
for a joint life of the parents in the first place. Based on 58a SGB VIII (Sozialgesetzbuch VIII,
German Code of Social Law Title VIII) the mother(!) can obtain a so-called negative joint-
custody certificate from the Youth Welfare Office that has jurisdiction over her place of
residence.
b. The European Court of Human Rights in Strasbourg declared the German version of
automatic(!) sole custody to the mother to be in violation of Art. 14 in connection with Art. 8
European Human Rights Convention (EMRK), requiring the German legislator to modify 1626a
BGB in the near future (Judgment of December 3, 2009, EGMR, V Section, Case # 22028/04,
Zaunegger vs. Germany; EGMR NJW 2010, 501; Campbell/Hauleiter NJW-Spezial 2010, 324).
Subsequently, the German Constitutional Court came to a similar conclusion (Judgment of July
21, 2010, BVerfG 1 BvR 420/09; BVerfG NJW 2010, 3008). Consequently, the father of an
illegitimate child is now allowed to file a petition for joint (or even sole) custody with the Court
if the mother refuses to give him any custody rights voluntarily. Yet, the decisive factor for the
court will be: What is in the best interest of the child?. Therefore, it cannot be ruled out that
the aforementioned arguments of geographical and emotional distance between the unmarried
parents may be reintroduced to justify the mothers sole custody.
d. CHILDS NAME. If all parties involved agree, the child may take the father's last
name; otherwise the child shall take the mother's last name ( 1617a BGB).
e. LAW OF SUCCESSION. The parents can inherit from the child should the child pre-
decease. Yet, the childs inheritance right against the estate of the father in the event of his death
usually is subject to the laws of the state of the fathers domicile (Art. 25 EGBGB,
Einfhrungsgesetz zum Brgerlichen Gesetzbuch, Introductory Code to the German Civil Code).
In Germany, illegitimate children have the same right to inherit from both their parents like
legitimate children ( 1924 BGB). Art. 9 of The European Convention in the Legal Status of
Children born out of Wedlock of 15 October 1975 reads:
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A child born out of wedlock shall have the same right of succession in the estate of its father and its
mother and of a member of its fathers or mothers family, as if it had been born in wedlock.
B. Support Obligations
b. SUPPORT TO THE MOTHER. Even though the father is not married to the mother,
he may also be required to support the child's mother during the period from six weeks before the
birth through eight weeks after giving birth, and to pay the cost of the delivery, unless there exists
- as is typically the case for working mothers - insurance coverage. Moreover, the support
payments for the mother may be extended where necessary, to start 4 months before the child's
birth and to continue for up to 3 years in extreme circumstances, e.g., for a handicapped child,
even longer after the child's birth where the mother cannot work because she has to raise the
child ( 1615 l BGB). This also applies if the mothers marriage fails because of the illegitimate
child (OLG Bremen NJW 2004, 1601). If the alleged father financially cannot afford to pay
support, his parents may become responsible for these payments ( 1607 BGB).
c. CHILD SUPPORT. How much child support is owed, depends on the father's income
and the applicable German child support guidelines. The most cited guideline is called
"Dsseldorfer Tabelle" (Duesseldorf chart). It is revised every two years in accordance with the
cost of living index. At a minimum a child can claim support as specified in the net income
group 01. (See, below) ( 1612a BGB), which is also referred to as Regular Support
(Regelunterhalt). The German courts regard these charts as mandatory and will disregard any
agreement on a smaller amount.
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"Relatives [by blood or adoption] in lineal descent [grand parents - parents - children - grand children] are
obligated [for life] to support each other when another relative in lineal descent is unable to support himself or
herself."
i.. Child support orders can be created free of charge at any German Youth Office
(Jugendamt). They can also be revised if the underlying circumstances change ( 239 FamFG)
(BGH NJW 2011, 1874; Graba NJW 2011, 1854).
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* If the solider is supporting multiple children who reside in different family units, each child
who is not covered by a child support order will receive a pro-rata share of the soldiers BAH-
II with (AR 608-99 para. 2-6e(1)(a)-(e)).
j. The DoD Per Diem, Travel and Transportation Allowance Committee has changed the
terminology used to describe what has been referred to as BAH II; the table is now published as
BAH RC/T (= reserve component transit) Rate. The BAH II tables represented the BAO rates in
effect at the time the Army switched from BAQ und BAH. They have been adjusted each year to
reflect the increase in housing costs. The language at the bottom of the chart regarding what
BAH RC/T is and who it applies to is the same. The BAH RC/T rates should be applied
wherever AR 608-99 specifies BAH II.
k. Failure to provide support can lead to recoupment by DFAS if you are getting a benefit
for having dependents, but not supporting the dependents. The standard for recoupment is a
failure to provide adequate support, i.e., BAH DIFF (see AR 608-99 para. 1-7 and DOD 7000.14-
R, vol. 7A, Ch 26, para. 260406, especially subpara. A, B & E).
C. Visitation Rights
a. As of July 1, 1998 the father has a right and an obligation(!) to exercise his visitation
rights ( 1684 BGB). It is a constitutionally protected parental right (BVerfG NJW 1983, 2491).
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Each parent shall refrain from impairing the child's relationship with the other parent (Hauleiter
NJW-Spezial 2007, 151). Furthermore, the visitation right also applies to the child's
grandparents, the child's brothers and sisters as far as it is necessary for the child's well being (
1685 para. 1 BGB). The visitation right even extends to any person close to the child that
maintains or has maintained a family like relationship with the child ( 1685 para. 2 BGB). The
decisive argument is what is in the child's best interest.
b. Should the parents fail to agree on visitation times, they may seek mediation at the
Sozialer Dienst, a German social agency that closely works together with the Youth Office (
165 FamGG). Should they still disagree thereafter or if one parent refuses to participate in
mediation, then the matter must to be decided in court. Compulsory levy or direct constraint may
be imposed against any parent in violation of an order regulating visitation rights; however, the
child cannot be forcefully taken ( 90 para. 3 FamGG). Yet, the custodial parent may endanger
his/her own support (Palandt-Brudermller, BGB, 69th Ed. 2010, 1579 No.6 BGB Rn 31).
c. Courts may not only specify and modify visitation rights, the judge can also limit the
visitation rights where it is necessary, e.g., if the father behaves unreasonably ( 165 para. 5
FamGG, 1666, 1671, 1696 BGB). Often German courts and juvenile authorities fear parental
kidnapping and child abduction to the USA. However, the United States and Germany have both
signed an international treaty called "The Hague Convention of 25 October 1980 on the Civil
Aspects of International Child Abduction" (Hague Convention #28). It has been implemented
into the US Parental Kidnapping Prevention Act and the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA) making swift operations by the German courts and police or their
American counterparts possible to prevent such acts.
A. Garnishment
A payment due to a member of a force or of a civilian component from his Government shall be subject to
attachment, garnishment or other form of execution ordered by a German court or authority to the extent permitted
by the law applicable in the territory of the sending State.
b. AER 37-8 (28 January 2010) directs the Civil Process Section at International Law and
Operations Division at OJA in Heidelberg to forward the garnishment order to Military Pay
Division, PCE, 266th FMC, Unit 23122, APO AE 09227-3122 (AER 37-8 para. 5 d). The
garnishment will be based on 42 U.S.C. 659 or 5 C.F.R 581 respectively.
c. Subject to garnishment are: base pay, special pay, incentive pay, accrued leave
payments, readjustment pay, severance pay, lump-sum reserve bonus, inactive duty training pay,
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retired pay, and retainer pay. NOT subject to garnishment are: BAS, BAH, FSA, and all station
allowances,
d. As a general rule a maximum of 50% of the garnishable net pay is taken out if the
member concerned is supporting a spouse or dependent child other than a spouse or dependent
child with respect to whose support the legal process is issued. This amount is increased to 60%
if no spouse or dependent child is supported. An extra 5% is added on the 50% or 60% if
arrearages exist.
a. The Uniform Interstate Family Support Act (UIFSA) and the Uniform Reciprocal
Enforcement of Support Act (URESA) respectively as well as their German counterpart, the
"Auslandsunterhaltsgesetz" (AUG, Foreign Maintenance Act), enable the parent having custody
of the child to seek and enforce a judgment regarding child support or collecting arrears of child
support where the non-custodial parent no longer lives in Germany but has returned to the USA.
In Germany, such claims are processed through the Central Agency ("Zentrale Behoerde"). Its
address reads as follows:
Bundesamt fr Justiz
- Zentrale Behrde -
Adenauerallee 99-103
53113 Bonn
Germany
Phone: +49 (0)228-99410-40
Fax: +49 (0)228-99410-5207
Email: auslandsunterhalt-1@bfj.bund.de
http://www.bundesjustizamt.de
b. Where an official guardian has been appointed (usually the German Youth Office), a
different approach has to be taken. The Youth Office generally works through the "Deutsches
Institut fr Jugendhilfe und Familienrecht in Heidelberg (http://www.dijuf.de) rather than the
"Zentrale Behoerde".
c. When dealing with maintenance claims in Germany the primarily governing laws as of
June 18, 2011 are:
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January 2009, p. 1 (Verordnung (EG) Nr. 4/2009 ber die Zustndigkeit, das
anzuwendende Recht, die Anerkennung und Vollstreckung von Entscheidungen
und die Zusammenarbeit in Unterhaltssachen, EuUntVO)
- Implementing regulations in the German Foreign Maintenance Act
("Auslandsunterhaltsgesetz", AUG) as amended (see, Andrae NJW 2011, 2545).
V. ANNEXES
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A. Child Support Guidelines January 2008 thru January 2010 (new law)
January 1, 2008
January 1, 2009
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January 1, 2010
January 1, 2011
- see page 6.
1st step:
(Child Support + of the Kindergeld) x 100
------------------------------------------------------- = X%
Minimum support for the childs age group
2nd step:
Minimum support for the childs age group x X% = amount to be rounded to the next full
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C. Child Support Guidelines January 2002 thru January 2007 (old law)
January 1, 2002
a. DUESSELDORF CHART. From January 1, 2002 until June 30, 2003 the child
support according to the Duesseldorf chart amounted to:
b. Example C: if the father is in net income group 3 and he has to support a 3 year old
child for which the mother receives Kindergeld, whereas the father cannot use his US child tax
credit, then he needs to pay child support in the amount of 177.00, calculated as follows:
Example C: New Law (as of January 1, 2001) Old Law (pre 2001 cases)
254.00 (child support for a 0-5 year old 215.00 (child support for a 0-5 year
baby, father is in net income group 6!!) old baby if father is in net
- 215.00 (minimum support in child age income group 3)
group 1 if father is in net income group 3) - 77.00 (half of the Kindergeld)
----------------------------------------------------------- ---------------------------------------------
39.00 (balance) 138.00 (actual child support owed
under the old law)
77.00 (half of the Kindergeld, 154 : 2)
- 39.00 (balance from above)
-----------------------------------------------------------
38.00 (Kindergeld balance)
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July 1, 2003
a. DUESSELDORF CHART. From July 1, 2003 until June 30, 2005, child support
according to the Duesseldorf chart amounted to:
b. Example A: if the father is in net income group 1 and he has to support a 7 year old
child for which the mother receives Kindergeld, whereas the father cannot use his US child tax
credit, then he needs to pay child support in the amount of 241.00, as calculated below.
c. Example B: if the father is in net income group 3 and he has to support a 3 year old
child for which the mother receives Kindergeld, whereas the father cannot use his US child tax
credit, then he needs to pay child support in the amount of 192.00, as calculated below.
326.00 (child support for a 6-11 year old 269 (child support: 0-5 year old,
child, father is in net income group 6!!) father: net income group 6!!)
- 241.00 (minimum support in child age - 227 (minimum support: child age
group 1 if father is in net income group 1) group 1, father: net income
----------------------------------------------------------- group 3)
85.00 (balance) ---------------------------------------------
42.00 (balance)
77.00 (half of the Kindergeld, 154 : 2)
- 85.00 (balance from above) 77.00 ( Kindergeld: 154 : 2)
----------------------------------------------------------- - 42.00 (balance from above)
0.00 (Kindergeld balance) ---------------------------------------------
35.00 (Kindergeld balance)
241.00 (child age group 2, net income group 1)
- 0.00 (Kindergeld balance) 227 (child age group 1, net income 3)
----------------------------------------------------------- - 35 (Kindergeld balance)
241.00 (actual child support owed) --------------------------------------------
192.00 (actual child support owed)
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July 1, 2005
a. DUESSELDORF CHART. From July 1, 2005 until June 30, 2007, child support
according to the Duesseldorf chart amounts to:
b. Example A: if the father is in net income group 1 and he has to support a 7 year old
child for which the mother receives Kindergeld, whereas the father cannot use his US child tax
credit, then he needs to pay child support in the amount of 241.00, as calculated below.
c. Example B: if the father is in net income group 3 and he has to support a 3 year old
child for which the mother receives Kindergeld, whereas the father cannot use his US child tax
credit, then he needs to pay child support in the amount of 192.00, as calculated below.
334.00 (child support for a 6-11 year old 276 (child support: 0-5 year old,
child, father is in net income group 6!!) father: net income group 6!!)
- 247.00 (minimum support in child age - 233 (minimum support: child age
group 1 if father is in net income group 1) group 1, father: net income
----------------------------------------------------------- group 3)
87.00 (balance) ---------------------------------------------
43.00 (balance)
77.00 (half of the Kindergeld, 154 : 2)
- 87.00 (balance from above) 77.00 ( Kindergeld: 154 : 2)
----------------------------------------------------------- - 43.00 (balance from above)
0.00 (Kindergeld balance) ---------------------------------------------
34.00 (Kindergeld balance)
247.00 (child age group 2, net income group 1)
- 0.00 (Kindergeld balance) 233 (child age group 1, net income 3)
----------------------------------------------------------- - 34 (Kindergeld balance)
247.00 (actual child support owed) --------------------------------------------
199.00 (actual child support owed)
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July 1, 2007
a. DUESSELDORF CHART. As of July 1, 2007, child support according to the Duesseldorf chart
amounts to: (Please note, for the first time the amounts were slightly reduced compared to the previous chart of July
1, 2005!)
b. CHILD SUPPORT & KINDERGELD. If the mother is an ordinary resident of Germany she draws
Child Allowance (Kindergeld) from the German Labor Office. For each child, up to three, she receives 154.00
per month in Kindergeld per child. 1612b para. 3 BGB stipulates that all child support payments up to net income
group 6 are to be reduced if the father is entitled to Kindergeld as well. According to the German Institute for Youth
Human Services and Family Law (Deutsches Institut fr Jugendhilfe und Familienrecht DIJuF) US fathers can
have their support obligation reduced if they do not qualify for the US child tax credit because the child resides with
the mother receiving German Kindergeld (U 1.432 USHQ/DI, 11 July 2000).
c. Example A: if the father is in net income group 1 and he has to support a 7 year old child for which the
mother receives Kindergeld, whereas the father cannot use his US child tax credit, then he needs to pay child support
in the amount of 241.00, as calculated below.
d. Example B: if the father is in net income group 3 and he has to support a 3 year old child for which the
mother receives Kindergeld, whereas the father cannot use his US child tax credit, then he needs to pay child support
in the amount of 192.00, as calculated below.
331.00 (child support for a 6-11 year old 273 (child support: 0-5 year old,
child, father is in net income group 6!!) father: net income group 6!!)
- 245.00 (minimum support in child age - 231 (minimum support: child age
group 1 if father is in net income group 1) group 1, father: net income
----------------------------------------------------------- group 3)
86.00 (balance) ---------------------------------------------
42.00 (balance)
77.00 (half of the Kindergeld, 154 : 2)
- 86.00 (balance from above) 77.00 ( Kindergeld: 154 : 2)
----------------------------------------------------------- - 42.00 (balance from above)
0.00 (Kindergeld balance) ---------------------------------------------
35.00 (Kindergeld balance)
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