Federal Parliament: Plenary Proceedings of 05/09/1996

Dr. Edzard Schmidt-Jortzig, Federal Minister of Justice: The reform of parenting rights represents one of the most important legal policy efforts on the part of the Federal Government during this legislative period. After a long period of thorough preparation, I can today present to you the corresponding proposed legislation. I would like to take this opportunity to thank my predecessor, Sabine Leutheusser-Schnarrenberger, for her commitment in the preparation of this legislation.

As evidenced by the petitions submitted by the SPD faction and the Bündnis 90/Die Grünen coalition, we are all agreed that the current parenting rights legislation is in dire need of reform. My colleague, Mrs. von Renesse: when we discussed the request presented by your faction last year, you found yourself to be in 90 percent agreement with the Federal Government. I feel that we should also reach agreement regarding the remaining 10 percent in order to reach as broad a consensus including consensus within society as well -- as possible.

The most important goal of our reform is to dismantle the remaining differences between legitimate children and those born out of wedlock. We therefore recommend that assignment to the categories "legitimate" and "illegitimate" should end. Children of unmarried parents have long since ceased to be an exception. In the New Federal States, 41.4 percent of all children born in 1994 were born out of wedlock. The discrimination against these children and their parents must end.

A decisive step in equalizing the status of children of both married and unmarried parents is taken by providing unmarried parents with the opportunity to have joint custody of their children. This does not mean that joint custody should apply in an undifferentiated manner and without additional conditions. Because only a quarter of all children of unmarried parents live with both parents, joint custody for parents who did not live together at the time of the child's birth is to be contingent upon a custody declaration made by both parents. Aside from this, the creation of a legal bond between father and child is designed to maintain the child's relationship to both parents beyond crises in the parental relationship. It also allows both parents to enjoy equal participation in the lives of their children.

One of the main areas of conflict is the regulation joint custody of their children for divorced parents. For children, the divorce of their parents is a painful experience that often brings with it long-term consequences. Therefore, all political powers wish to maintain as much commitment as possible on the part of both parents towards their children after the divorce.

Joint custody by divorced parents not only preserves both parents for the child something which is of great importance for the child's development it also ensures a high degree of continuity in matters pertaining to raising the child. However, joint custody only works when the parents are willing and able to cooperate and act in for the best interests of their children.

Naturally, one cannot place to great a burden on this ability to cooperate. It is for this reason that the proposed legislation only requires parents to reach agreement on basic issues. This form of joint custody to a great extent prevents ongoing antagonism on the part of the parents at the expense of their children. If conflict is nonetheless unavoidable, or is merely to be feared, neither parent is prevented from submitting a petition for sole custody, either during the divorce proceedings or at some later point.

In other words, joint custody is by no means the legal standard as has been constantly implied. The proposed legislation merely separates two things which do not belong together, namely, the often fierce "battle for the children" and the "battle over money". The current forced association during divorce proceedings between these two aspects results in the battle for custody often being unpleasantly tied to the battle for material goods.

Even with the proposed legislation, this will continue to be the case in numerous instances, since many parents will submit a petition for sole custody during the divorce proceedings and the rule to abide by the judicial decision remains in force. To me, however, it is important that parents are at least offered the opportunity to engage in the "battle over money" without having to tie it to the "battle for the children". In the interest of the children, I would like to preserve this.

Our reform also seeks to improve the rights of children. We all realize that the parents' rights of contact must primarily be preserved in the interest of their children. For this reason, the legislation is to emphasize that the welfare of the child in other words, not the welfare of the parents is served by regular contact with both parents. This statement should become the standard with regard to contact and visitation.

Beyond this, the Upper House recommends the introduction of a separate, judicially enforceable right of contact for the child. I feel that this is a well meaning but impractical recommendation. Should a child actually be permitted to bring suit against its father or other close relatives? Is this type of forced contact sensible from a pedagogical standpoint, or will it only be carried out formally? Is punishment to be meted out in instances of refusal?

The path recommended by the Federal Government is more realistic. Here, the child can turn to the Youth Welfare Department if the persons entitled to have contact are remiss. Here too, the threshold of intervention is much lower than it would be for a court case.

The above standard also simultaneously addresses another important point: the right of contact for fathers who were never married to the mother and who also did not live with her. Contact to him is also, as a rule, of benefit to the child because children need their father as a second point of reference as they grow up, and to develop their own identity.

It is particularly with respect to the position taken by the Upper House that I am very optimistic with regard to the debate before us. In the interest of the affected children, the German Upper House should intensely but quickly debate this reform, and ratify it by the greatest possible majority.