Legal father must actually be father for the child

Legal father must actually be father for the child

OLG Hamm: social-family relationship required
Hamm (jur). If a man recognizes legal paternity for a child not born to him, he must also build a social and family relationship. Otherwise, the biological father of the child can successfully challenge the legal paternity of the man, the Higher Regional Court (OLG) Hamm decided in a decision announced on Friday, April 8, 2016 (file number: 12 UF 244/14). As a rule, a social-family relationship can be assumed if the legal father is married to the mother or lives with the child for a long time in a domestic community and thus assumes responsibility.

The decided paternity lawsuit concerned a child born in 2011. The 24-year-old mother from Guinea came to Germany in 2010 as an asylum seeker. The child emerged from an illegitimate relationship with the applicant, also from Guinea.

Legal paternity for the child was taken over by a 50-year-old German who, however, does not live with the mother but with another woman. The mother and he live in Münster and have given the boy a joint custody declaration. The legal father also pays maintenance and has regular contact with the child.

The biological father living in Dortmund contested the legal fatherhood of the other man. The objection that paternity was only recognized for reasons of residence law.

The mother and legal father did not consider the challenge of paternity justified. They would live a "social-family relationship" with the child. The legal father is thus also a "real" father.

However, in its decision of February 11, 2016, the OLG confirmed the applicant. The biological father should be seen as the father for the child. A law-protected social-family relationship only exists if the legal father actually bears responsibility for the child, according to the Hammer Richter. This is usually the case if he is married to the mother or lives with the child in the home for a long time. Neither is the case here.

A challenge to paternity can also be excluded outside of these presumptions if the legal father maintains a “relationship that is worth protecting and is socially meaningful” to the child. However, this only results from the perception of "typical parental rights and obligations of the legal father".

This was also not ascertainable with the legal father. The joint custody declaration and maintenance payments were not sufficient. The mother now lives with another man, and the legal father was also unable to name any childcare services currently provided. It is not enough for the boy to say "Papa" to him, since this is what he calls the mother's new partner. (fle)

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