The following is an article by Fathers & Families Board Member, Robert Franklin, Esq.:

Last year, the European Court of Human Rights ruled that Germany’s law requiring the mother’s approval for a single father to be granted parental rights violated the European Union’s charter prohibiting discrimination. Now Germany’s highest court has followed suit declaring the scheme unconstitutional. Read about it here (Der Spiegel, 8/4/10).

As things have stood to date, a single man who fathered a child had to apply to the government for parental rights which were only granted if the mother signed off on them. Radically discriminatory as that system was, it somehow lasted until now. The government is now at work on changing the laws to reflect court rulings.

And according to the article cited, it looks like that will be in the direction of equalizing the parental rights of fathers and mothers. Whether that actually happens and to what extent remain to be seen. As we know, there’s many a slip ‘twixt a court ruling and legislative action. Generally speaking, we can count on legislatures to do what they can to keep fathers’ rights as minimal as possible and still remain constitutional.

And then there are the lower courts that often prove themselves capable of ignoring the plain intention of statutes. The Financial Times Deutschland got it right when it editorialized,

Unmarried and married fathers should be automatically given custody rights to their children when they are born, rather than having to apply for it.

And there has to be a change of culture on the family courts, so that the judgement is not just on paper but also works in practice.

“Automatically given custody rights to their children when they’re born…” What a concept; it’s simple, fair and helps connect children to their dads, but few jurisdictions do it. There’s a bill before the Irish Parliament to equalize the rights of married and single fathers with those of mothers, but it’s yet to be enacted. Most American states have no such statute on the books.

Meanwhile, the newspaper Die Tageszeitung seems overtly hostile to the concept of fathers’ rights at all. While saying that married and unmarried fathers should be treated equally, its editorial quoted in the article is suspicious of fathers generally saying first that some fathers just want custodial rights “as a way of exercising power.” The evidence for the propositon? None. It’s just one of those unsupported assertions that agree with certain people’s anti-father bias and so enter into what passes for reasoned discussion of parental rights.

And since that’s the stance taken, it wouldn’t make sense for the paper to cite actual social science that shows clearly that it’s mostly mothers who exert power when it comes to children and their rights to a father. Can Die Tageszeitung possibly have missed the fact that that’s exactly what German law has done to date? Conditioning single fathers’ rights on the OK of mothers really can’t be spun any way but as an overt grant of power to mothers.

That’s the legal aspect of it in Germany, which is in addition to the rich social science on maternal gatekeeping. Studies of maternal gatekeeping make it clear that frequently, it’s the mom who decides the extent of the father’s role and the nature of his relationship with his child. Again, that’s “a way of exercising power” over children and fathers, but did Die Tageszeitung notice it? Criticize it? Nope.

Not content with unsupported assertions, Die Tageszeitung goes on to recommend that the German Parliament restrict fathers’ rights to their children and children’s rights to their fathers. This is one we’ve seen before. It’s the old “in order to have rights, the father must prove his bonafides as a parent.” Mothers? No such requirements are deemed necessary.

So, on one hand, Die Tageszeitung would once again place fathers’ rights in mothers’ hands, the same way it’s done in this country. By the simple expedient of keeping the dad in the dark about the existence or whereabouts of his child, a mother will, if the newspaper’s recommendations are followed, be able to completely control his rights. As here, all a mother will have to do is play “keep-away” from the father and he’ll find his rights have come to nothing. Move away, conceal her pregnancy, tell him it’s another man’s, tell him she had an abortion, tell him she placed the child for adoption. If the dad ever gets wind of the scam and goes to court, he’ll be informed that it’s too late; he didn’t perform his paternal duties, so he has no parental rights. All of that has been proven to work in the U.S., so why not in Germany?

And on the other hand, there are the things Die Tageszeitung would allow courts to consider in deciding whether a father had done enough to have a relationship with his child. It names “responsibility, a connection between the child and parent, empathy.” Hmm. I wonder how a court might measure “empathy.” But beyond that, once again, all of those things can be easily controlled by the mother’s game of keep-away.

More to the point, while other publications, and the European and German high courts call for equalizing parental rights in custody matters, Die Tageszeitung is unabashed in its desire to treat mothers and fathers differently. It calls for altering the terms of anti-father discrimination, but not its abolition.

So the courts can say what they will, but the German Parliament will be the one to change the law. And Die Tageszeitung is proof positive that the anti-dad crowd’s narrative of fathers as undeserving of simple, basic equality will not go gently.

Robert Franklin, Esq., is a board member of Fathers & Families, America’s largest family court reform organization. To learn more, see www.fathersandfamilies.org. 

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