Divorced Parent of German Child may Remain in Germany

As of February 21, 2005, the VG Braunschweig (Re: 6 B 56/05) decided on the rules concerning the right to remain in Germany of a divorced non-German father who does not have custody of a joint child – who has German citizenship – with his non-German ex-wife. The father leads an independent life from his child.


The court decided that even though he is not entitled to the right and duty of custody for his child, a father may enjoy protection from expulsion under certain circumstances. The main prerequisite is that the father participates in living a life with a child and raising it. The German constitution (Art. 6 GG) mandates the duty of the state and courts to protect the family. In relation to the law on foreigners, this means that only a family as such may be expelled, but not a single member. A family is commonly understood as unit of usually married adults typically having one or more joint children and cohabitating as a family. In this case, a typical family does not exist anymore because the parents are divorced. Nevertheless, the parent-child relationship as such also falls under this rule. §28 I no. 3 AufenthG stipulates a privileged position for non-German parents of German minors in so far as a cohabitation exists. Since this father was not living as a responsible but only as a biological father in Germany, he has no right to claim protection as a family. He is subject to all the rules governing expulsion.

Published on the old CMS: 2006/7/16
Read on the old CMS till November 2008: 1,221 reads

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