Ronald Pofalla (CDU/CSU): Within the context of reforming parenting rights, we are today addressing its most serious section, namely, the parenting rights reform legislation. Numerous discussions, expert conversations, written position papers, and polls of those affected during the past months have all shown that this topic affects us all. This is not some special-interest legislation of which the majority of the population is not even aware or that is lost in the jungle of political reporting. Instead, this is a legislative proposal that focuses on the welfare of the child, and therefore affects all social strata equally.

In our society, the lifestyle of a unmarried family is increasingly and consciously preferred to matrimony and, in the majority of instances, is also recognized. Contrasted to this, the number of divorces is continuously increasing in Germany. Unfortunately, it is children who are affected and suffer the most. In the first instance because, while unmarried couples make a conscious decision to have children, these children have, until now, often suffered under the stigma of illegitimacy as a result of outdated moral views and a corresponding legal environment. In the second instance, children have, until now, had to suffer under the fact that, after a separation -- that is actually meant to affect only the parents -- there is generally a complete loss of custody on the part of one parent.

In both instances and against a background of changed social conditions, lawmakers were confronted with an urgent necessity to act.

It is for precisely these reasons that the proposed legislation presented here also corresponds to the determinations made over the course of the past years in individual decisions handed down by the Federal Constitutional Court with respect to the overall problem. According to these decisions, the rights of children born out of wedlock were to be made equal to those of legitimate children. We are no doubt in agreement that this too is urgently required.

Finally, Art. 6, Para. 5 of the Constitution requires the lawmakers to create equal conditions for the physical and spiritual development of legitimate children and those born out of wedlock.

In this context, the first point of equalization affects the right of origin which, in the proposed legislation has been made as uniform as the natural facts allow for legitimate children and those born out of wedlock. In those cases where divorce proceedings were underway prior to the birth of the child, and the paternity of a third party has been recognized by the child's mother and her previous husband, the assumption of paternity with respect to the previous or still current husband is to be limited. In order to strengthen the rights of the mother, her agreement will be required for any recognition of paternity.

In all, this measure is also designed to modernize the rights of origin in the Civil Code, as these are currently still linked to outdated moral assumptions. The well-informed society of the 21st Century no longer has any necessity for previous paternity assumptions.

The proposed legislation also, and for the first time, contains a clarification of the definition of who is the mother of a child: According to the legislation, the mother of a child shall always be that woman who bore the child. This statement, which will appear to be obvious to most, must be included in order to accommodate modern medical techniques of reproduction. In this way, under the family law, the foundation is also to be removed from surrogate maternity – which is illegal under German law.

Finally, and at the express instruction of the Federal Constitutional Court, the right of a child to know its genetic origins is also strengthened. Upon reaching majority, the child has the opportunity to dispute its paternity, an opportunity whose exercise is restricted to a period of two years. This term begins at the point at which circumstances awaken doubt in the child as to it's paternity.

What are to be eliminated are the currently still permissible paternity disputes initiated by the parents of the assumed father.

Aside from this, the legislation continues to foresee no avenue for the progenitor of the child to dispute paternity.

Finally, a significant regulatory aspect of the reform legislation concerns the area of parental custody. As expected, this central issue was the one most discussed in conjunction with the reform legislation.

For the first time, and in accordance with the determination of the Federal Constitutional Court, the parents of children born out of wedlock will be able to have joint parental custody of their children. In future, a publicly recorded agreement made by both parents will suffice for this. However, should this contradict the will of the unmarried mother, joint custody will not be granted. In the interest of the child, there shall, however, be an improvement in the visitation rights for the unmarried father. Beyond this, in those instances where legal or circumstantial reasons prevent the child's mother from properly caring for her child, the unmarried father can be considered as a substitute custodian if this expressly serves the welfare of the child. Overall there was consensus with respect to this overdue regulation of the legal aspects affecting children born out of wedlock.

The discussions concerning custody rights over children of divorced parents were much more passionate. This is because the legislative proposal presented here seeks, from the very outset, to prevent the child from becoming the object of disputation during the divorce proceedings. For this reason, the family judge shall no longer decide in matters of custody as a part of the divorce decree. Instead, the proposed legislation foresees a judicial decision regarding custody only in those instances where one parent expressly requests it during the divorce or at a later point. In all other instances, joint custody is to be the norm. In cases of the endangerment of the child's welfare, a judicial decision in this matter shall be possible at any time.

During the course of an expert discussion on precisely this point, various methodologies were determined. In particular, the importance of the requirement to petition for sole custody was not disputed. Overall and contrary to expressed fears, the requirement to petition for sole custody will hardly represent an obstacle to women. This suspicion is mitigated by the very fact that most divorce petitions are, in any case, submitted by women. Why should a woman therefore look elsewhere or be prevented from also submitting a petition for sole custody at the same time? This should eliminate any disadvantage or the risk that women might be pressured into not submitting such a petition. Unfortunately however, the case where a woman has been influenced or intimidated not to submit a divorce petition in the first place will undoubtedly arise. However, the proposed legislation presented here is not intended to avoid or legally prevent this.

The object of joint custody is limited to important decisions in the development of the child. With regard to measures affecting day-to-day life, the parent who has assumed permanent custody of the child will make all decisions. The requirement for this new regulation is based on the unwillingness to continue to accept the grievous, automatic denial of custody ordered by the state. In place of the risk of alienating the child from one parent, this legislation seeks to take into account the fact that a parental bond continues to exist, despite the marital bond having been severed. On the other hand, in order to prevent a situation where parental consensus is required -- and may not be reached -- for everyday decisions, sole custody applies to these matters. In this way, day-to-day decisions cannot be dragged out, blocked or, in the worst case, sabotaged.

In any case, all the various recommendations for formulating parental custody of children of divorced parents had in common the fact that the child's welfare must come first, and that the concept presented here takes into sensible account the strengthened parental responsibility.

In addition, the proposed legislation foresees as a new procedural recommendation that the currently fragmented jurisdictions of the Family and the Guardianship Courts will, in future, be reorganized. Accordingly, all procedures related to parental custody and visitation, all those affecting marriage and kinship, maintenance claims, procedures concerning ancestry, and conflicts concerning support will fall under the jurisdiction of the Family Court.

Ladies and gentlemen, I think that we have made every attempt to govern our numerous discussions up to this point on the basis of facts that have been germane to the topic and the primary focus. In my opinion, the result presented here need not shy the light of day with respect to the current demands of child welfare.