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Improved custody rights for fathers of children born out of marriage

Zaunegger v. Germany  | 2009

Improved custody rights for fathers of children born out of marriage

It is a great satisfaction for me that this great suffering and the powerlessness that I have felt for years, now lie behind me.

Horst Zaunegger, reported by the German Press Agency, quoted by Süddeutsche Zeitung

Background

Horst Zaunegger had a daughter. He was not married to the mother. When the couple separated, Mr Zaunegger was refused joint custody of their child. This was because, as the couple had not been married, joint custody could only be granted if the mother agreed to it, or if the child’s well-being was threatened.

Mr Zaunegger applied to the Strasbourg court, claiming that the law amounted to unjustified discrimination and breached his right to family life.

Judgment of the European Court of Human Rights

The court noted that, when a married couple separated in Germany, the father did not require the mother’s permission to be awarded joint custody of children. This meant that the law unfairly discriminated against fathers of children born out of marriage, compared to fathers of children born within marriage – in breach of Mr Zaunegger’s basic rights.

Follow-up

In 2013 the law was changed so that, if a parent of a child born out of marriage applies for joint custody, this will be granted as long as this is not against the child’s best interests.

Additional information