Visitation rights of the biological father after the adoption of the child

The XII. The Civil Senate of the Federal Court of Justice had to answer the question of whether the biological father of a child also has a right of access if the child was adopted by the mother's registered partner with his consent.

The mother of the child, conceived by means of a so-called private sperm donation by the applicant and born in August 2013, lives in a registered civil partnership with the other person involved (life partner). The life partner adopted the child in 2014 with the consent of the applicant by way of the so-called stepchild adoption. The applicant initially had contact with the child until 2018, which either took place in the household of the (legal) parents or was accompanied outside by one of them. The child is aware of the biological paternity of the applicant. In the summer of 2018, he expressed to the parents the desire to have contact with the child in his home environment and for a longer period of time, which they refused. After two further meetings, the applicant's personal contact with the child broke off. The applicant has applied for a contact arrangement whereby he picks up the child from the day-care center at 1:30 p.m. on Tuesdays every fortnight and hands it over to his parents at 6:00 p.m. The district court rejected the application. The applicant's complaint was rejected by the court of appeal because there was no legal basis for a right of access.

In response to the applicant's appeal on points of law, the Federal Court of Justice overturned the decision of the court of appeal and referred the matter back to it.

Admittedly, there is no right of access according to Section 1684 of the German Civil Code because only legal parents are entitled to it and this is therefore excluded for the applicant who is only the biological father. There is also no entitlement under Section 1685 (2) of the German Civil Code (right of access for close associates). For this it is necessary that a social and family relationship with the child, characterized by actual acceptance of responsibility, was established, which, however, did not exist in the present case due to the time limit of the contacts, which were always accompanied by the parents.

On the other hand, a claim according to Section 1686 a, Paragraph 1, No. 1 of the German Civil Code (biological father’s right of access) is generally possible. According to this, the biological father, who has shown a serious interest in the child, has a right to contact with the child if contact is in the best interests of the child. According to Section 167 a (1) FamFG, applications are only admissible if the applicant declares in lieu of an oath that he or she was with the mother of the child during the period of conception. The fact that the child was conceived with the help of a so-called private sperm donation does not prevent the producer's entitlement to claim and the admissibility of the application, especially since the private sperm donor, in contrast to the "official sperm donation" in the case of medically assisted fertilization according to § 1600 d para. 4 BGB, also has the right to determine his paternity would not be barred by operation of law. Even the adoption carried out does not exclude the right of contact according to Section 1686 a Paragraph 1 No. 1 BGB. In this respect, there is no factual difference between a stepchild adoption by the mother's husband and the parenthood of the mother's life partner or wife - which is not expressly taken into account by law - through adoption. The fact that the applicant had consented to the adoption does not conflict with the right of access. Rather, the biological father's consent to the adoption only excludes the right of access if this also constitutes a waiver of the right of access. In any case, this is missing if the child should get to know the biological father and have contact with him, as agreed by the parties involved. This is also in line with assessments under adoption law. This is because adoption law increasingly provides for the possibility of maintaining contact between the child and the family of origin for so-called open or semi-open adoption. Whether and to what extent contact is to be regulated is therefore primarily judged by whether the biological father has shown a serious interest in the child and to what extent contact is in the best interests of the child. In doing so, the biological father must respect the legal parents' right to bring up children, without this giving the parents the right to refuse contact.

After remitting the proceedings, the appellate court now has to examine whether and to what extent contact in the present case is in the best interest of the child, and to hear the now seven-year-old child personally for this purpose.

lower courts:

KG Berlin - Resolution of December 19, 2019 - 13 UF 120/19

AG Tempelhof-Kreuzberg - Resolution of July 19, 2019 - 127 F 1400/19

The relevant regulations are:

§ 1684 BGB

(1) The child has the right of contact with either parent; each parent is obliged and entitled to contact with the child.

...

§ 1685 BGB

(1) Grandparents and siblings have a right to contact with the child if this is in the best interest of the child.

(2) The same applies to close caregivers of the child if they are or have been responsible for the child (social and family relationship). Actual responsibility can generally be assumed if the person has lived with the child in the same household for a long period of time.

...

§ 1686 a BGB

(1) As long as the paternity of another man exists, the biological father, who has shown a serious interest in the child,

1. a right to contact with the child if contact is in the best interests of the child,

2. a right to information ...

...

§ 167 a FamFG

(1) Applications for the granting of rights of access or information pursuant to Section 1686a of the Civil Code are only admissible if the applicant declares in lieu of an oath that he or she was with the mother of the child during the period of conception.

...

§ 1600d BGB

...

(4) If the child was conceived through medically assisted artificial insemination in a medical care facility within the meaning of Section 1a number 9 of the Transplantation Act using heterologous semen that was obtained from the donor of a collection facility within the meaning of Section 2 (1) sentence 1 of the Sperm Donor Register Act has been made available, the sperm donor cannot be identified as the father of this child.

...

Karlsruhe, July 19, 2021

Press Office of the Federal Court of Justice

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