Judgment: Mother has to endure paternity test: Cuckoo child yes or no?

OLG Oldenburg: Mother has to tolerate paternity assessment
If a child was the possible consequence of a jumping off, the married mother must basically tolerate the examination of the biological fatherhood of the former lover. The mother can not simply refuse the proceedings by arguing that with the paternity test the existing intact family and thus childhood is at risk, the Oberlandesgericht( OLG) Oldenburg decided in a decision announced on Wednesday, 8 March 2017( Az.: 13 WF 14/17).

In the actual case, it was about a one-and-a-half-year-old child, which perhaps comes from a side jump of the married mother with her former lover. The legal father is, however, the husband in accordance with the applicable provisions.

Image: Jasmin Merdan - fotolia

The possible biological father demanded that the woman allow a paternity test procedure. If he were the biological father, he also wanted to deal with his child. According to the law, this is possible in the case of a "serious interest" in the child, provided that the child is well served.

But the mother refused to take part in the pediatric examination with her child. This does not serve the well-being of her child. Her former lover, as an intruder, was to be seen in an intact family.

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In its decision of 14 February 2017, the OLG obligated the woman to tolerate the paternity test. The child's mother did not face any additional burdens on family life, especially as her husband knew about the whole procedure.

If the biological paternity of the applicant is confirmed, a second step should be clarified as to whether the man's dealings with his child serve childhood. For this purpose, various allegations raised by the mother would have to be clarified and the child should be informed in a childlike manner about the biological father.

The Federal Constitutional Court had already decided in a decision of 19 November 2014 that a paternity test must be proportionate( Ref.: 1 BvR 2843/14, JurAgentur-Meldung vom 4. Dezember 2014).The presumed biological father can not always immediately demand a paternity test. This is different when it is comparatively easy to clarify these questions without affecting the family life of the mother.

The Federal Court of Justice( BGH) decided on 5 October 2016( ref.: XII ZB 280 /15, JurAgentur report of 3 November 2016).As far as dealing with the biological father is concerned, childhood takes precedence over parental rights. If the parents refused to enlighten the child about his or her descent, the family court would have to provide relief if necessary.fle

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