Recognition of paternity; notarisation

The legal consequences of paternity in relation to a ‘child born out of wedlock’ can only be invoked once paternity has been validly acknowledged or has been established by a final and binding court order.

The vast majority of paternity determinations are based on voluntary acknowledgement. This must be declared before the Youth Welfare Office, the local magistrates’ court, the registrar, the court hearing the paternity determination proceedings, or before a notary, and must be officially recorded. Abroad, the competent consular officer takes the place of the notary. Whilst proceedings to establish paternity involving another man are pending, a voluntary acknowledgement of paternity is only valid if recorded by the court hearing the case, upon presentation of a genetic test report. The acknowledgement must not be subject to any condition or time limit. It is permissible even before the child’s birth.

For the acknowledgement to take effect, the child and the child’s mother must consent to it. If the mother has parental responsibility for the child, the consent of the legal representative is deemed to have been given if the mother has given her consent to the acknowledgement. If the mother does not have parental responsibility for the child, for example because she is a minor, the child is represented in this matter by the youth welfare office as the official guardian (naturally, the minor mother requires the consent of her legal representatives – usually her parents – in order to give her own consent). Consent to the acknowledgement must also be recorded in a public document.

Furthermore, where there is a so-called ‘discrepancy in residence status’ between the mother and the person acknowledging paternity, the Immigration Authority must, as a rule, approve the acknowledgement of paternity. Consent is not required only if the person acknowledging paternity is the biological father of the child or of another child of the mother, or if he married the mother after the birth, or has been living with her for some time at a shared main residence. A discrepancy in residence status exists, for example, where one of the parties holds German nationality and the other holds a residence permit or a temporary leave to remain.

If the man is not prepared to voluntarily acknowledge paternity, the child or the mother may apply for a declaration of paternity (however, an application for a declaration by the man is also admissible, for example if, in his view, the mother has wrongly refused to consent to his declaration of acknowledgement).

The Family Court decides on the application for a declaration of paternity in paternity proceedings. As a general rule, a genetic paternity report is obtained. If the report establishes a sufficiently high probability of paternity, the court declares that the man in question is the child’s father.

In addition to the application for a declaration of paternity, the child may apply for maintenance payments if they are a minor. The Local Court’s Family Division may order the man to pay maintenance at the minimum rate retroactively from the date of birth; this entitlement takes effect once the man’s paternity has been legally established or he has validly acknowledged paternity. This is intended to ensure that the child obtains a maintenance order as quickly as possible. Upon application, the court may, under certain circumstances, also issue an interim order obliging the man to pay maintenance even before the paternity determination becomes final. If there is a dispute as to whether the father can pay less or more than the minimum maintenance, this must be decided in follow-up proceedings.

Both when preparing for a voluntary acknowledgement of paternity and during paternity proceedings, the child may be legally represented by the Youth Welfare Office acting as a guardian ad litem.

Competence for registration:

Youth Welfare Office, Local Court, the court hearing the paternity proceedings, Registry Office, notary; abroad, the competent German consular officer.

Competence for proceedings in matters of parentage:

Local Court – Family Court.