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Rules to Remain in Germany as Parent of a German Child

As the inventor of cartoons, Wilhelm Busch, said: “Vater werden ist nicht schwer. Vater sein dagegen sehr. (Becoming a father is easier than being a father.) This is especially the case for a father of a child of an unmarried woman if the Ausländeramt wants to deport you. The BVerfG has recently (December 8, 2005 and on January 23, 2006, re 2 BvR 1935/05) developed the rules if you are to be deported or not.

Rules to Remain in Germany as Parent of a German Child

Art. 6 GG mandates the authorities to protect the family and simultaneously gives the family the right to demand protection from government. So, what constitutes a family? Only a married couple? Following the controlling case law of the Federal Constitutional Court, a family typically consists of two parents and one or more children. Does this constitutional principal bar any deportation under §60a II AufenthG?

One point noted by the Bundesverfassungsgericht is that it does not matter whether a child’s primary care is provided by the mother or someone else. Thus, it can be argued that a father can play this role, too. This role will be especially important for a child of a biracial marriage with parents of different races. It is significant that the child has access to both cultural heritages while growing up. In the case at hand, the father (an African-American) needed to have the opportunity to aid his offspring to find its self-identity with this distinctive different skin color in his environment.

When interpreting and applying the law on foreigners, the authorities have to reasonably consider this judgment. This is especially true when the parent is to be deported. With 1997 family law reform, a child’s position in relation to its parents was significantly strengthened. On account of this reform, authorities now have to take the effects on the child into consideration more strongly. They have to consider how the child’s situation will be affected by a decision. The authorities must inquire whether a personal relationship between father and child exists. They have to determine what will be in the best interests of the child. Only exceptionally and only for convincing reasons may other interests other than those of the child prevail. Such reasons will typically be public safety and order (öffentliche Sicherheit und Ordnung).

Moms, what is the other way around? That is no problem since the law applies equally to all, men and women, black and white (Art. 3 III GG).

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