European Court of Human Rights: German Custody Law Discriminates Against Single Dads

At least in Germany they admit it.

In 2003, Harshad, a British citizen of Indian descent, had a baby daughter with his German girlfriend. Knowing nothing of Germany”s idiosyncratic custody laws, Harshad went along with his girlfriend”s suggestion that they skip the laborious process of registering joint custody.

It wasn”t until the couple split that Harshad discovered the enormity of that choice.

“I had no idea it would cause so many problems,’ said Harshad, a 44-year-old IT professional. “My ex-girlfriend had said, ‘It”s nothing to worry about; from the paperwork point of view, it”s far easier not to do it, and I said, ‘Okay,” not really understanding the situation.’

What it meant was that, after the separation, Harshad, who asked that his name be changed, had no claim to be the legal guardian of his daughter. Even if his former girlfriend were to die, custody would pass not to Harshad but to the mother”s parents.

In short, in Germany, single fathers have no parental rights without the consent of their child’s mother. In order to establish their rights, they have to file documents with the state and they can’t do that if the mother doesn’t agree. Apparently, she has to file along with him. If she doesn’t, it’s his tough luck.

This article tells us about German custody law and points out something I hadn’t thought of (The Local, 7/2/10). The law gives single mothers such total control over the parental rights of the fathers of their children that they can convert it into cash. As one single father said,

“I give (my ex-girlfriend) the regular child support and … then on the side, I pay her extra to keep things nice. I realised that I have to be nice because I”ve got no cards. I have nothing. There is no piece of paper saying I have any rights.’

There was a time that would have been called extortion, but apparently where fathers and children are concerned, it’s perfectly alright.

In the U.S. we’re far less candid about placing the rights of fathers, particularly single fathers, in the hands of mothers. We do it, but require subterfuges far more subtle than the one employed by “Harshad’s” ex. Here, in order for a mother to deprive a single father of his rights, she has to lie to him, avoid him, place the child secretly for adoption, lie to the court, etc. If they’re divorced or separated, she has to deny him visitation over a long period of time. Or, if the two are married and she has a child by another man, she has to convince her husband the child is his. That is, she’s got to jump through some hoops in order to deny the child the care of its father.

Now, for the most part, those hoops are perfectly acceptable to state legislatures and family courts. No state has passed a law that requires a mother to tell the father about his child. If she doesn’t, he’ll at best have real problems getting access to his child, if he ever learns about it. Again, his rights are in her hands. Does she commit perjury in family court for the purpose of denying the child to its father and the father to his child? For the most part, that goes entirely unpunished, as does the denial of visitation.

Up to now, German law has been far more frank about the matter of the rights of single fathers; they don’t have any without the mother’s say-so. That’s simple and easy to understand.

It’s also illegal – as of last December.

In December, the European Court of Human Rights ruled that German custody law discriminates against unmarried fathers by denying them custody without the mother”s consent. The government is now reviewing the law, with a bill expected this year.

“German law has to change and will change,’ said Thomas Meysen of the German Institute for Youth Human Services and Family Law, which is conducting research for the government on international comparisons of child custody law.

“There should be a possibility for fathers to get into joint custody without having to rely on the mother”s consent. In that sense, the law is deficient at the moment.’

If Germany wants to change its laws, it has plenty of examples from which to choose that would allow it to continue discriminating against single fathers and still pass legal muster. Basically, it just has to create the fiction, like the U.S. does, that giving primary custody to mothers and “visitation rights” to fathers (a) is equitable, (b) likely keeps both parents in their children’s lives and (c) is good for children. Then Germany can dress the whole thing up with a nice pink ribbon called “joint custody,” and it all looks pretty good.

It looks good, that is, if you don’t examine it very closely. If you do that, you notice that our wonderful system harms children, denies fathers meaningful parental rights, enriches lawyers and enrages anyone with even a minimal sense of justice. It’s not really something to emulate.

I know Herr Meysen said that the law must and will change, but he may have been optimistic. It seems the government doesn’t agree.

Thorsten Bauer, spokesman for the Federal Justice Ministry, which has oversight of custody law, denied there was systemic discrimination in the courts…

Of course, as a member of the government, it may be difficult for Bauer to admit that “yes, we discriminate.” So his statement may just be posturing for the press. After all, when the law allows a woman complete power to grant or deny rights to a man, how can it not be said to discriminate? It’s the very definition of discrimination.

And then there’s this from Meysen:

“The mother”s rights or the father”s rights are not the most important questions,’ he said. “In family conflicts, usually one parent feels they are the loser. The one that does might blame the authorities, in this case the Jugendamt.

“In break-ups … people”s feelings get hurt and most of the time, they”re fighting about something else, not the custody. Then they make it an issue of rights: ‘I have a right to the child and the mother – or the father – does not.” Where are the child”s interests in that?’

Isn’t it funny how the concept of parental rights all of a sudden becomes suspect when fathers look like they’re about to get more of them? We see this frequently. When fathers agitate for more time with their kids or even equal consideration as parents, then and only then do certain people call into question the very idea of parental rights. I’ve never seen anyone talking about mothers’ parental rights make that claim.

And reading what Meysen said, you’d think that parental rights in some way excluded children’s interests. No, actually it’s one of the major reasons for increasing and enforcing fathers’ rights; children do better with two parents in their lives. “Where are the child’s interests in that?” They’re right there beside fathers’ interests hand in hand. Children need their fathers; they tend to do better with fathers involved in their lives than without. We know this. Meysen pretends we don’t.

But if Meysen is so dismissive of parental rights, I propose the Germans just reverse things. Give all single dads sole custody of their children and complete control over mother’s rights. If the dad says she can see the child, fine; if not too bad for her. Of course Germans are never going to even consider such a thing and in truth I wouldn’t want them too. After all, I’m serious about this two-parent thing. But still it’d be entertaining to see, if the positions of the sexes reversed, how quickly people like Meysen decided that parental rights weren’t such a bad idea after all.

Thanks to Paul for the heads-up.

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