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Federal Constitutional Court: Child welfare is decisive for custody
If a boy wants to be a girl permanently and accordingly dress in public, parents must not prohibit this contrary to the best interests of the child. This was made clear by the Federal Constitutional Court in Karlsruhe in a decision published on Friday, December 29, 2017, and the assignment of sole custody to a separated father was reversed (Az .: 1 BvR 1914/17).
The background to the legal dispute was the wish of a boy born in 2008 to behave and dress like a girl permanently. The child regularly stayed with the separated parents, taking the so-called change model. The parents exercised common concern.
But when she first expressed her wish to be a girl at the age of six, the upbringing came up. In court, the father and mother wanted to take sole care of themselves so that the child could be “properly” brought up. Psychological examinations revealed suspicions of a gender identity disorder.
The mother responded to the son's request. She put on girl's clothes for him, spoke to the child with a girl's name and communicated this at school. She pointed out that the child should finally be taken seriously and that it should live contentedly in its perceived gender.
The father didn't think much of it. The mother would also promote the son's wish with her behavior. There was a risk of teasing at school. If the son stayed with him, everything was unremarkable. He forbade the child to appear as a girl in public. The father counted on the fact that puberty would be enough. He also argued for psychotherapeutic treatment.
The child himself had told the district court that he did not mind wearing boy clothes. It had close social ties to both the father and the mother and wanted to keep it that way.
The Higher Regional Court (OLG) Naumburg finally gave the father sole concern. It is not clear whether the eight-year-old child has a gender identity disorder. The child's behavior is also “ambivalent”, even if it were different, the child should not be left to decide whether to dress as a boy or a boy. Only the father guarantees a "procedure that is as open as possible, accepting and supportive, so that he must be granted sole custody", decided the OLG.
The mother saw her parent's right, which is protected in the Basic Law, violated. The father does not consider a change of gender roles to be justifiable. Rather, he puts pressure on. So he threatened the child not to receive Christmas presents if it could not be cut the hair.
In their decision of December 7, 2017, the constitutional judges now overturned the OLG decision. The extent to which a parent can be granted sole care for a child largely depends on the child's best interests.
"The child is placed under the special protection of the state as a being with its own human dignity and its own right to free development of its personality," warned the Federal Constitutional Court. Here the child exercised his right to self-determination by announcing his will.
The OLG's reasoning was not sufficient for the sole assignment of sole concern. For example, the court did not take into account the effects of having the child forced against the will by the father to only appear in public as a boy. A judicial expert feared "far-reaching negative consequences" if the child was denied a desired change of gender role.
A child's well-being is possible, which the OLG must now examine, according to the Federal Constitutional Court. fle