Federal Parliament: Plenary Proceedings of 05/09/1996

Dr. Wolfgang Götzer (CDU/CSU): The current proposal seeks to completely restructure German parenting rights. This renewal is necessary for two reasons: On the one hand, there exists a corresponding order by the Federal Constitutional Court with respect to certain items and, on the other, this must be fully implemented for the sake of legal uniformity in Germany. In addition, altered social conditions provide the grounds for reform.

The almost 500-page-long proposed legislation contains, among other things, regulations concerning rights of origin, rights of contact, rights of naming, and adoption rights, as well as a number of procedural regulations. The equalization of legitimate children and those born out of wedlock with respect to the rights of inheritance is contained in a separate piece of proposed legislation that has already been passed on to committee for debate.

One of the primary items in the parenting rights reform legislation is undoubtedly the new regulation of parental custody. For this reason I intend to make this the focus of my comments. The proposal presented here intends, in future, to provide a stronger legal anchor for joint custody by both parents. For children born out of wedlock, and in accordance with a decision handed down by the Federal Constitutional Court, this will be possible if both parents request it. With respect to legitimate children in cases of divorce, the proposed legislation will separate the custody decision from the current forced association, in other words, the family judge will no longer be forced to reach a decision concerning custody as part of the divorce decree. Any other method will only apply if at least one parent petitions for a judicial decision, either during the divorce or at some later point in time.

While the majority of the other recommendations in the proposed legislation have met with overall agreement among the public and affected associations, and agreement on many points has been reached with the SPD, the new regulations concerning parental custody has become the subject of initially moderate but subsequently increasingly heated criticism. The phalanx of critics stretches from radical feminists to Catholic women's organizations.

The composition of the opposition permits the assumption that, with respect to this question, women see their traditional and inherent rights as being threatened. If one looks at the arguments put forward by women's organizations against joint custody, one receives the strong impression that this topic is being used for ideological ends. Among the feminist ultras, the intention of excluding men from the custody rights to their children with the goal of alienating them from their children and, if necessary, to use illicit means to achieve this goal, is quite apparent.

Naturally, such motivations can and must not be the basis for the regulation of parental custody.

Neither the interests of the mother nor of the father are decisive. The only decisive factor is the welfare of the child, and this must be the focus of all considerations and regulations.

I am firmly convinced that joint custody of both parents for their child which, after all, continues to be their child even after the divorce best serves the basic welfare of the child. In addition, this will emphasis and institutionalize the parental responsibility for common children.

By separating custody decisions from the forced association, the legislation intends, from the very outset, to prevent the child from becoming an object of conflict during the divorce proceedings. Where the child's welfare is in danger, procedural recourse will, however, continue to be available at any time in the form of a judicial decision regarding parental custody. This sensible concept takes into account the increased parental responsibility.

However, in order to address some justifiable concerns, the proposed legislation should be modified in this area: in future, the Family Court should continue to be obligated particularly when no custody request has been submitted to address the formulation of parental custody during the course of the judicial divorce proceedings and to provide comprehensive information regarding the possible formulation methods and the consequences resulting from them, as well as the available assistance and counseling services. We do, however, reject judicially documented custody plans.

In addition, the sole right to make decisions concerning day-to-day matters as is granted to the parent with whom the child normally resides should be more clearly specified than is currently the case under § 1687, Para. 1, BGB-E.

In my opinion, this would, to a great extent, calm the widespread fear that joint custody would not work because constant differences of opinion between the parents regarding secondary child-rearing questions might arise.

I would remind those opposed to joint parental custody that, even after their separation at the level of partners, parents have a basic responsibility for their common children. The decision to grant sole custody to one parent simultaneously represents the legal severance of this responsibility with respect to the other parent, in other words, the withdrawal of custody rights. However, outside the divorce process, this is only possible in cases of massive parental failure. Divorce alone cannot be an adequate reason for this type of intervention.

It is hoped that the intended reform after an evaluation of the debate that will no doubt follow can be quickly ratified and put into place.