Federal Parliament: Plenary Proceedings of 05/09/1996

Hildebrecht Braun (Augsburg) (F.D.P.): The last time the rights of parental care were amended was on January 1, 1980. While 16 years may represent a brief period of time in the history of a people, much has changed in our land over this time. Basic attitudes and understandings concerning parenting rights have altered, particularly after reunification. Modification of parenting rights therefore became an urgent necessity.

What is unfortunate is that the particularly important, sociopolitical changes in the government's proposed legislation were not initiated by the lawmakers, but instead, needed to be instigated by the Federal Constitutional Court. If this court had not acted, this proposed legislation that is designed to provide children with joint parental custody even, if possible, for a period after the parents have divorced, would not exist today. It is equally important that the Federal Constitutional Court did not first open the way to married parents for joint custody. The court's decisions strongly affect the thoughts of the people. They do not simply reflect a change in the opinions of a majority. If the reverse were true, then the subsequent demand on the part of the Constitutional Court for social progress in the area of parenting rights would not have been necessary.

Though the path that has led to reform may be strange, the results of the efforts by thousands of committed citizens are good: the new parenting rights legislation places the child in the spotlight. As a member of the Parliamentary Commission on Children, I am particularly pleased with this.

Until now, children have all too often been -- and continue to be -- pawns in the parents' and often the grandparents' battle for control. The proposed legislation seeks to counteract this fatal tendency to the greatest degree possible. The often-seen ultimatum: "either you pay more support, our you loose all contact to your child", will, if possible, be eliminated.

All too often, the once customary transfer of parental custody to one parent -- usually the mother -- has resulted in the rapid estrangement of the child and its father. This process was intensified by the reduction of the father/child relationship to one of simple financial obligation without any opportunity for responsibility for the child. This was, and still is, perceived to be extremely damaging.

It is not the rights of the woman, the mother, or the father on which we should focus, but rather the welfare of the child and its rights. The child was conceived by the father and borne by the mother. It has a right to both parents. The state is therefore responsible for regulating parental responsibilities after a bad marriage in such a way that the opportunity for the child to maintain or reestablish close contact to both parents is not lost. Of course, both parents often have serious communications problems during and after a divorce.

However, children should be punished as little as possible for the fact that the parents were incapable of maintaining an harmonious family life. We therefore once again emphasize our commitment to the concept of a joint parental custody that can only be revoked at the request of one of the parents.

The legislation carefully instructs the parents to bear joint responsibility after the divorce, regardless of the personal difficulties involved. This forces both parties to exhibit more discipline, more tolerance, certainly more willpower, but all of these in the interest of the common children. This is certainly a good thing.

There already exist a number of studies that statistically confirm an unexpectedly high success rate for joint parental custody. For example, two studies by the General Social Services Office in Munich carried out over a period of years. Unfortunately, the results of the study carried out by Professor Fthenakis at the request of the Family Ministry will not be available for another two to three weeks.

They will confirm that the evaluation of joint parental custody is generally seen by the children, both parents, and the grandparents as being very positive, even over the course of a number of years.

In short, practical experience encourages us to take the step for more joint custody after a divorce, but also in cases of unmarried parents.

Between mid-1994 and mid-1995, the rate of petitions for joint parental custody after divorce was around 17 percent throughout the Federal Republic. In the Saarland, Baden-Württemberg, Hamburg, Schleswig-Holstein, and Hessia, the rate exceeded 20 percent. Thus, judicial decisions obviously do not simply follow party or political lines.

We found particularly low rates of requests for joint parental custody in the New Federal States: 5.8 percent in Mecklenburg/West Pomerania, 7 percent in Thuringia, and 9.3 percent in Saxony.

The regulations affecting unmarried couples are almost more important than those dealing with instances of divorce. While, in the West, 12.4 percent of children born in 1994 were born out of wedlock, the rate in the East was 41.4 percent. In the New Federal States, the rate of unmarried households with children is already greater than 50 percent.

In this instance, the elimination of legal custody by the state in favor of the single mother and the opportunity for joint custody and contact rights for unmarried fathers, the correct course has been charted.

During the 1960s, the DGB ran an advertising campaign under the motto: "Focus on Humans". This formulation was and remains correct. We have now made it even more concrete by saying: "Focus on the Child". We will continue to pursue this trend.