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OLG Oldenburg: Mother must tolerate paternity
If a child was the possible consequence of an affair, the married mother must generally tolerate the examination of the former lover's biological paternity. The mother cannot simply refuse the procedure with the argument that the determination of paternity will endanger the existing intact family and thus the child's well-being, the Higher Regional Court (OLG) Oldenburg decided in a decision announced on Wednesday, March 8, 2017 (Ref .: 13 WF 14/17).
In the specific case it was about a one and a half year old child, who may have come from an affair between the married mother and her former lover. Legal father is however the husband according to the valid regulations.
The potential biological father requested that the woman allow a paternity test. If he is the biological father, he also wants to deal with his child. According to the law, this is possible if there is a “serious interest” in the child, provided that the handling also serves the child's best interests.
But the mother refused to take the pedigree with her child. This is not for the good of your child. Her former lover should be seen as an intruder in an intact family.
In its decision of February 14, 2017, the Higher Regional Court obliged the woman to tolerate the determination of paternity. The child's mother did not face any additional strain on family life from the examination, especially since her husband knew about the whole procedure.
If the applicant's biological paternity is confirmed, the next step is to clarify whether the man's handling of his child serves the child's best interests. For this, various allegations made by the mother would have to be clarified and the child should be informed about the biological father in a child-friendly manner.
In a decision of November 19, 2014, the Federal Constitutional Court had already ruled that a paternity test must be proportionate (file number: 1 BvR 2843/14; JurAgentur notification of December 4, 2014). The alleged biological father cannot always immediately request a paternity test. But things look different if it is comparatively easy to answer these questions without affecting the mother's family life.
The Federal Court of Justice (BGH) ruled on October 5, 2016 (file number: XII ZB 280/15) whether the biological father might deal with his child automatically, if this leads to relationship problems between the mother and the legal father ; JurAgentur announcement dated November 3, 2016). If dealing with the biological father comes into consideration, the child's welfare has priority over parental rights. If the parents refused to inform the child about his parentage, the family court would have to remedy the situation if necessary. fle