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Federal Constitutional Court - Decisions of the Federal Constitutional Court

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Federal Constitutional Court (ed.)

Decisions of the Federal Constitutional Court

2022

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8. BVerfGE 75, 201 - Foster Parents - child custody (1987) S. 108-115

„… the child. Thereupon, the court temporarily withdrew parental custody from the parents, ordered …” „… conflict between the interests of the parents, or of one parent with sole custody, in having the child …” „… who has custody of the child does not exercise the right to determine the child’s place of residence …”

Contents/Introduction

„… . BVerfGE 75, 201 Foster Parents - child custody (1987) 869. BVerfGE 78, 77 Public Announcement of Legal …”

Appendix - Basic Law for the Federal Republic of Germany S. 784-893

doi.org/10.5771/9783748930006

Federal Constitutional Court - Decisions of the Bundesverfassungsgericht - Federal Constitutional Court - Federal Republic of Germany

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Decisions of the Bundesverfassungsgericht - Federal Constitutional Court - Federal Republic of Germany

2013

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BVerfGE 55, 171 Order of the First Senate of 5 November 1980 – 1 BvR 349/80 “Custody case” Accommodation of the will of a child in a ruling on custody after divorce of the parents and ruling of the judge with jurisdiction on the question of the personal hearing of children under the age of 14 S. 156-165

„… mother. I. The ruling on parental custody for a child who is the issue of a dissolved marriage is …” „… which parent shall have parental custody for a joint child. (2) The court shall make the arrangement …” „… the Custody Act, that the court is to hear the child in person in custody proceedings in which …”

BVerfGE 127, 132 Order of the First Senate of 21 July 2010 – 1 BvR 420/09 “Case regarding custody rights of fathers of children born out of wedlock” Decision regarding the parental right of the father of a child born out of wedlock; incompatibility of § 1626a.1 no. 1 and § 1672.1 of the Civil Code with Article 6.2 of the Basic Law S. 826-851

„… parental custody of his child where the child’s mother does not consent and because he cannot obtain a …” „… the parental custody of his child together with the mother or to transfer the sole parental custody of …” „… intend this and make declarations of parental custody, which may be done even before the child is born …”

BVerfGE 107, 150 Judgment of the First Senate of 29 January 2003 – 1 BvL 20/99, 1 BvR 933/01 “Case regarding parental custody for children born out of wedlock” § 1626a of the Civil Code is currently compatible with Article 6.2 and 6.5 of the Basic Law, lack of a transitional arrangement for old cases is unconstitutional S. 611-632

„… custody for children born out of wedlock” HEADNOTES: 1. The child’s best interests require that from its …” „… that parental custody of a child born out of wedlock is normally attributed to its mother upon the …” „… child’s birth. 2. The possibility of joint custody facilitated by § 1626a.1 no. 1 of the Civil Code …”

BVerfGE 61, 358 Judgment of the First Senate of 3 November 1982 – 1 BvL 25, 38, 40/80, 12/81 “Joint custody case” Decision regarding the exclusion of the joint custody of divorced parents S. 203-219

„… Basic Law that parental custody for a child who is the issue of a marriage which has been dissolved by …” „… interests so require, one parent may be assigned the care for the person of the child, and the other custody …” „… parent shall have parental custody for a joint child. (2) The court shall make the arrangement which is …”

BVerfGE 84, 168 Order of the First Senate of 7 May 1991 – 1 BvL 32/88 “Case regarding custody rights for children born out of wedlock” Joint parental custody for children born out of wedlock S. 320-335

„… joint exercise of parental custody (elterliche Sorge) by the father and the mother of a child born out …” „… parental custody in those cases in which the father and mother are living with the child, both are seeking …” „… of custody rights is in the child’s best interests. EXTRACT FROM GROUNDS: A. The submission concerns …”

BVerfGE 72, 122 Order of the First Senate of 18 June 1986 – 1 BvR 857/85 “Withdrawal of custody rights case” Safeguarding the status of children as holders of fundamental rights in the proceedings (supplementary curator) S. 231-244

„… parents having custody of the child are prevented from representing their child’s interests. Order of the …” „… interests of the child are endangered by abusive exercise of the custody rights, by neglect of the child or …” „… against an order containing a decision on a matter affecting the custody rights for a child may be brought …”

BVerfGE 60, 79 Order of the First Senate of 17 February 1982 – 1 BvR 188/80 “Case concerning the separation of a child from its family” Separation of a child from its family even where the parents fail without being at fault as the strongest encroachment on parental rights, only if principle of proportionality is strictly observed S. 191-202

„… complaint concerns the withdrawal of parental custody rights for a legitimate child and the transfer of such …” „… custody rights to a municipal youth welfare office that intends to arrange a foster home for the child. I …” „… psychological best interests of the child are jeopardised by the abusive exercise of parental custody, by …”

BVerfGK 5, 161 Order of the First Chamber of the First Senate of 5 April 2005 – 1 BvR 1664/04 “Görgülü III case” Binding effect of a decision of the European Court of Human Rights – constitutional requirements placed on the removal of a child from its foster family S. 724-731

„… a decision on custody of the Naumburg Higher Regional Court. 1. The child, who was born in August …” „… March 2004 – 5 F 741/02 SO –, it rejects as unfounded the petition of the complainant for custody …” „… 1999, was born to the complainant and the mother of the child, who were not married. Immediately after …”

BVerfGE 99, 145 Order of the Second Senate of 29 October 1998 – 2 BvR 1206/98 “Hague Child Abduction Convention case” Hague Child Abduction Convention; accommodation of the best interests of the child in the special case of converse child return applications S. 386-401

„… having the care of the person of the child was not actually exercising the custody rights at the time of …” „… of the child is not to be taken to be a determination on the merits of any custody issue. The return …” „… is to ensure that the custody proceedings are implemented at the child’s original place of habitual …”

BVerfGE 106, 166 Order of the First Senate of 29 October 2002 – 1 BvL 16, 17/95, 16/97 “Case involving the advantage acquired through additional counted children” Decision regarding the equal treatment of different forms of family under the law on child benefit S. 577-590

„… dissolved marriage being taken into account. The mother of S., who had custody of him, her first child …” „… ., who had sole custody, would only have received a child benefit totalling DM 200. The defendant …” „… maintains the child or who is entitled to sole custody is entitled to draw 582 the benefit is alleged to be …”

BVerfGE 104, 373 Judgment of the First Senate of 30 January 2002 – 1 BvL 23/96 “Double family names case” Exclusion of double family names S. 515-529

„… wedlock, the right to designate the birth name of a child is now linked to the joint right of custody of …” „… , or if only one parent has custody for a child, only one name is available for the birth name of the …” „… child. By contrast, if married or unmarried parents who have custody use different names for the …”

BVerfGE 117, 202 Judgment of the First Senate of 13 February 2007 – 1 BvR 421/05 “Secret paternity test case” Decision regarding the right of the legal father to know that his child is biologically his and the obligation of the legislature to make available a suitable procedure S. 759-778

„… custody of the child, in extramarital cohabitation until the beginning of 1997. … a) In the year 2002, the …” „… paternity test privately, with the consent of the child or of its mother who has custody, relying in part on …” „… custody also includes making the decision, in the interests of the child, as to whether a person may …”

Titelei/Inhaltsverzeichnis

„… November 1980 – 1 BvR 349/80 “Custody case” Accommodation of the will of a child in a ruling on custody …” „… legitimate child with her 127 VI 10. BVerfGE 53, 224 Judgment of the First Senate of 28 February 1980 – 1 BvL …” „… concerning the separation of a child from its family” Separation of a child from its family even where the …”

BVerfGE 103, 89 Judgment of the First Senate of 6 February 2001 – 1 BvR 12/92 “Marriage covenant case” Judicial review of agreements in a covenant of marriage concluded with a pregnant woman prior to the conclusion of marriage S. 475-490

„… enable the parent with custody to devote himself or herself to caring for and bringing up the child. … b …” „… custody to the releasing party was contrary to public policy if the custody arrangement was in the child’s …” „… for the child if the father is not willing to undertake joint custody. What is more, she had and still …”

BVerfGE 111, 307 Order of the Second Senate of 14 October 2004 – 2 BvR 1481/04 “Görgülü I case” Obligation to take into account the European Convention on Human Rights and the decisions of the European Court of Human Rights, and the limits of such obligation, in the context of the principle that the judge is bound by statute and law (Article 20.3 of the Basic Law) S. 694-713

„… Regional Court. I. 1. a) The complainant is the father of the child Christofer, who was born illegitimate …” „… on 25 August 1999. The mother of the child, who at first did not name the complainant to the …” „… authorities as the father of the child, gave the boy up for adoption one day after his birth and first …”

BVerfGE 10, 59 Judgment of the First Senate of 29 July 1959 – 1 BvR 205, 332, 333, 367/58, 1 BvL 27, 100/58 “Case concerning parental power” Decision regarding the equality of the mother and the father (father’s final decision) S. 20-39

„… matter of parental custody the arrangement of which is of substantial importance for the child, then the …” „… that is consistent with the child’s best interests. § 1629.1 (1) Parental custody includes the …” „… child alone to the extent that he or she exercises parental custody alone or the decision has been …”

BVerfGE 105, 313 Judgment of the First Senate of 17 July 2002 – 1 BvF 1, 2/01 “Civil Partnerships Act case” Correction of an adopted bill; right of approval of the Bundesrat; compatibility with Articles 6.1, 3.1, 3.3 sentence 1 and 14.1 of the Basic Law S. 541-576

„… wellbeing of the child. The same now applies to the spouse of a parent with custody who himself or herself …” „… custody in any case, if third parties who live together with the child, in agreement with the parent with …” „… granted other legal possibilities of obtaining custody for their child alone or together with the other …”

BVerfGE 24, 119 Order of the First Senate of 29 July 1968 – 1 BvL 20/63, 31/66, 5/67 “Adoption I case” Substitution of parental consent to adoption S. 51-74

„… of parental power, and unmarried mothers of custody, in substantive terms; it was said that the child …” „… so badly that temporary withdrawal of custody had had to be ordered. The father of the child born out …” „… 6.3 of the Basic Law means de facto separation whilst the parent-child relationship and the rights and …”

BVerfGE 79, 51 Order of the First Senate of 12 October 1988 – 1 BvR 818/88 “Foster parents case” Removal of a child from its foster family S. 287-300

„… – are to surrender the complainant in 3) – foster child – to the Youth Welfare Office, which has custody …” „… of parental custody, by neglect of the child or by non-culpable failure by the parents. It is thereby …” „… child may be removed from a foster family and transferred to a designated adoptive family (care prior to …”

BVerfGE 108, 82 Order of the First Senate of 9 April 2003 – 1 BvR 1493/96, 1724/01 “Biological father case” Decision regarding the legal position of the (putative) natural, but not legal, father and the constitutionality of §§ 1600 and 1685 of the Civil Code and § 1711 of the Civil Code old S. 642-668

„… another person with custody over the child (§ 1711.1 of the Civil Code old). However, the guardianship …” „… if he does not live (or no longer lives) together with the child and has no right of custody, may …” „… position of father if the protection of a family relationship between the child and its legal parents does …”

Index S. 937-956

„… – adult 308 – incognito 51, 58, 61, 72-74, 289, 299-300 – of an adult foreigner as a child 301, 306 …” „… identity 365-366 – parental rights 650-651 – relations with a child 647-648, 650, 662, 664 – social and …” „… – prior to adoption 287, 289, 297-298 child/children – abduction 387, 397 · international 387 – ability to …”

BVerfGE 66, 84 Order of the First Senate of 10 January 1984 – 1 BvL 5/83 “Maintenance priority case” Priority under the law of maintenance for the divorced spouse with care of children S. 220-230

„… second plaintiff –. Custody of the daughter was granted to the mother, who is raising the child and does …” „… claim to maintenance of the divorced spouse who is in need by virtue of caring for a child, even if the …” „… new spouse is prevented from working by the care and upbringing of a child (§ 1582.1 sentence 2 of the …”

BVerfGE 121, 69 Judgment of the First Senate of 1 April 2008 – 1 BvR 1620/04 “Parental duty of contact case” Decision regarding the compulsory enforcement of an adjudged duty of contact pursuant to § 1684.1 of the Civil Code S. 804-825

„… duty to care for and bring up their child which is imposed on parents by Article 6.2 sentence 1 of the …” „… Basic Law (Grundgesetz – GG) is not owed exclusively to the state but also to the child. The child’s …” „… or her child, is justified by the responsibility for his or her child imposed on the parent by …”

BVerfGE 107, 104 Judgment of the Second Senate of 16 January 2003 – 2 BvR 716/01 “Parental involvement in proceedings under the Juvenile Court Act case” Exclusion of a father with parental rights from proceedings before a juvenile court which involve his son (§ 51.2 of the Juvenile Court Act) S. 591-610

„… into conflict with the parental right to bring up a child. A conflict between parental rights and the …” „… bring up a child, but this does not make the requirement that such encroachment be based on a …” „… the parental right to bring up a child in Article 6.2 of the Basic Law. I. The Juvenile Court Act …”

BVerfGK 4, 339 Order of the Third Chamber of the First Senate of 28 December 2004 – 1 BvR 2790/04 “Görgülü II case” Arbitrary review of an unappealable arrangement for access – binding effect of a decision of the European Court of Human Rights – weighing of consequences with regard to contact in the form of access S. 714-723

„… following: a) The access begins on 8 January 2005 (see no. 1). b) The development report on the child must …” „… complaint, the complainant challenges the exclusion of the right of access to his child. 1. The child, who …” „… was born in August 1999, was born to the complainant and the mother of the child, who were not married …”

BVerfGE 80, 81 Order of the Second Senate of 18 April 1989 – 2 BvR 1169/84 “Case concerning the adoption of an adult foreigner” Right of residence of an adult foreigner adopted by a German S. 301-310

„… the child’s ability to take action and decisions increases, the responsibility and custody of the …” „… relate to the question of whether an adult foreigner who has been adopted as a child by a German national …” „… may be refused a residence permit. 301 I. 1. … A major may be adopted as a child if the adoption is …”

BVerfGE 105, 1 Order of the First Senate of 5 February 2002 – 1 BvR 105, 559/95, 457/96 “Post-marital maintenance case” Equivalence of family work and gainful employment in the assessment of post-marital maintenance S. 530-540

„… impugned court rulings have considered the value of the housekeeping and child-rearing performed during …” „… value of the housekeeping and child-raising of the spouse who was not in gainful employment as not …” „… (FamRZ 2001, p. 986). The offsetting method was said not to do justice to the equivalence of child …”

BVerfGE 108, 351 Order of the First Senate of 7 October 2003 – 1 BvR 246/93, 2298/94 “Case relating to the splitting advantage in case of spousal maintenance” Unconstitutionality of the consideration of fiscal advantages from a new marriage of a person obliged to provide maintenance in the assessment of the maintenance payable to the former spouse S. 669-680

„… his spouse who had been given custody of the child issued from the marriage. The complainant later …” „… remarried. After the birth of a joint child, his new wife, the complainant re 2, gave up her gainful …” „… his former wife and the child from this marriage. The tax deduction was said not to be a 673 change in …”

BVerfGE 76, 1 Order of the Second Senate of 12 May 1987 – 2 BvR 1226/83, 101, 313/84 “Entry of aliens to join family members living in the Federal Republic” Waiting periods for the entry of aliens (Turkish and Yugoslavian nationals) to join family members living in the Federal Republic of Germany S. 245-286

„… Yugoslavian nationals. Complainant 1) received a divorce from her first husband in Yugoslavia in 1978. Custody …” „… complainant 2). On 25 April 1983, she notified the Alien Authority that she was expecting another child …” „… 1983, complainant 1) delivered her second child, complainant 3). d) With their constitutional complaint …”

doi.org/10.5771/9783845237534

Axel Schmidt, Karl Westhoff - Kindeswohl interdisziplinär

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Axel Schmidt, Karl Westhoff

Kindeswohl interdisziplinär

2020

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IV. Anhang S. 261-318

„… that quantity doesn’t matter. Journal of Child Custody, 15, 26–34. Adamsons, K. & Johnson, S. K. (2013 …” „… . & Drapeau, S. (2016). Child adjustment in joint physical custody versus sole custody: A meta-analytic review …” „… ). Washington, WA: American Psychological Association. Bauserman, R. (2002). Child adjustment in joint-custody …”

III. Der Kindeswohlbegriff in den Humanwissenschaften S. 83-260

„… außerfamiliäre Kinderbetreuung (NICHD Early Child Care Research Network, 2006, S. 108). Für eine gelingende …” „… & Ahnert, 2003, S. 540–541). Eine Längsschnittstudie des NICHD Early Child Care Research Network (1997, S …” „… child-care participation. Even in extensive, early, unstable, or poor-quality care, the likelihood of infants …”

I. Einleitung S. 13-24

„… Kelly und Johnston (2005, S. 233–234) fassen diesen Zustand wie folgt zusammen: „Too few custody …” „… , parenting, child development, and children’s emotional and social adjustment for purposes of formulating …”

doi.org/10.5771/9783748904397

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Kindeswohl interdisziplinär

2022

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IV. Anhang S. 281-364

„… matter. Journal of Child Cus-tody, 15, 26–34.Adamsons, K. & Johnson, S. K. (2013). An updated and …” „… Association.Bauserman, R. (2002). Child adjustment in joint-custody versus sole-custody ar-rangements: A meta-analytic …” „… contribution of attachment theory to child custody assessments.Journal of Child Psychology and Psychiatry, 46 …”

III. Der Kindeswohlbegriff in den Humanwissenschaften S. 95-280

„… Child Care Research Network, 2006, S. 108). Für eine gelin-gende Einflussnahme auf die Kindesentwicklung …” „… ).Eine Längsschnittstudie des NICHD Early Child Care Research Network(1997, S. 875) aus den Vereinigten …” „… : „Therewere no significant differences in attachment security related to child-care partici-pation. Even in …”

I. Einleitung S. 15-26

„… Johnston (2005, S. 233–234) fassen diesen Zus-tand wie folgt zusammen: „Too few custody evaluators are well …” „… acquaintedwith, and make use of, the existing body of empirical literature on divorce, par-enting, child …”

doi.org/10.5771/9783748911029

Katrin Kappler, Vinzent Vogt - Gender im Völkerrecht

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Katrin Kappler (ed.), Vinzent Vogt (ed.)

Gender im Völkerrecht

Series: Schriften zur Gleichstellung

Volume 48 2019

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Alice Margaria Fathers as Gendered Beings. The Jurisprudence of the European Court of Human Rights S. 41-64

„… child custody in the United States or, more generally, in the legal tradition of Common Law. Under early …” „… Mother’ 1992 46 University of Miami Law Review 656. 65 Ibid; S. May, ‘Child Custody and Visitation’ 2001 …” „… custody was achieved with the assertion of the ‘best interests of the child’ standard as the principle …”

doi.org/10.5771/9783845297330

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