German Law/Paternity Test After Adoption
QUESTION: Hello Mr. Moser!
My fiancé has a child with a woman in Germany, or so we believed. After doing some digging, we personally believe she is not his biological daughter, and yet his family continues to torment him for the "mistake" he made.
He wants to have a paternity test done to lay this to rest and have a decisive answer once and for all. However, the mother of the child is adopting her to her husband for financial security very soon. My fiancé wants to wait until after the adoption has gone through to take the paternity test though, because knowing the mother, should it come back positive would squeeze him dry financially (he was never legally on the birth certificate in the first place).
1. Is there any way for him to petition the court for a paternity test after the child has been adopted by someone else?
2. If the test were to come back positive, would he have legal responsibility for that child as a result, or would the mother and adoptive father still have sole responsibility?
ANSWER: I think there is some confusion here.
1) If your fiancé and the mother were not married, then he could only have become the legal father either by officially acknowledging paternity or by a court order. In the absence of either of these options, he is not the legal father. The information on the birth certificate is irrelevant and can be amended anytime.
2) If the mother was married at the time of the baby's birth, her husband is automatically presumed to be the father. They don't need an adoption.
3) If your fiancé is the legal father on the other hand, an adoption can only occur with his consent.
4) And an adoption would of course sever all legal ties between the child and the first father (whether he biologically ever was the father or not). So once the adoption has gone through, he neither has to worry about anything, nor can he ask for a DNA test or anything else. He will be removed from the child's live completely.
I'll be happy to help your fiancé, but first we'll need to get the exact facts straight.
---------- FOLLOW-UP ----------
QUESTION: Thank you for your time and for allowing me to send a follow-up question to clarify any issues with the situation.
1. They were not married at the time of the child's birth and he never signed any official declaration. In fact, she had insisted for five years that he was on the birth certificate, but after getting a hard copy of the original birth certificate ourselves, we found out that was never the case.
2. The mother was not married at all, to my fiancé or anybody else, at the time of birth. She married her current husband two years ago, when the child turned three.
3. Given he was never on the birth certificate, there is no need for his consent in the adoption, and the mother is aware of this fact. In addition, she tried having my fiancé sign the acknowledgement of paternity a couple months ago, knowing full well that doing so would complicate the adoption process (presumably so she could resume obtaining child support from him which was never legally recorded).
4. Given how the mother has behaved, especially in requesting a legal declaration of his paternity recently, and had not completed this step at the child's birth, it raises doubts of whether this child is even his. Given everything explained, is there any way to request a biological paternity after the adoption is complete, say with consent or court ordered DNA test?
Re 1: Ok, so he is NOT and has ever been the legal father. Without establishing paternity, he has absolutely no legal ties, no rights and no obligations towards the child.
Re 4: No. § 1598a BGB does not apply because there is no legal relationship. The father can only file for establishment of paternity, but if the DNA test comes back positively, his paternity might be legally established. This might retroactively unravel the adoption unless he provides his consent.