If a child wants to take the same surname as her after the mother remarries, the hurdles are high if the biological father stands in the way. On one point, however, the Federal Court of Justice (BGH) is now relaxing its strict case law: a threat to the child's well-being will no longer be a prerequisite in the future so that the family court can order the so-called designation without the consent of both parents. This emerges from a decision from the end of January, which was published on Monday in Karlsruhe (file number: XII ZB 29/20).
In the case from Hesse, it is disputed whether a girl born in 2008 can take the surname of her stepfather and a younger sibling. His own father, with whom the child has had no contact for years, had not agreed to this. Most recently, the Frankfurt Higher Regional Court had decreed that the girl may still change her name. For the child, the topic is so stressful that it is close to tears as soon as it comes to it.
Double name as an alternative
After the BGH decision, however, this must be examined more closely. The legislature had deliberately tightened the requirements for a child law reform in 1997: Previously, family judges could approve the new surname if it was "in the best interests of the child" - since then only if it is "necessary for the child's best interests". The fact that a child wants to be named the same as his half-siblings is therefore not enough on its own, according to the decision from Karlsruhe. Nor that it might have to explain at school why it has a different name. The legislator wanted name continuity to be the rule.
However, one point is new: In older decisions, the BGH had assumed that the renaming by the family court is only necessary if there are concrete circumstances that endanger the child's welfare. This is now too strict for the judges. They decided not to stick to this line. The Frankfurt judges should now also check whether a double name is not considered. If this "milder measure" corresponds to the interests of the child, according to the BGH, this solution must be chosen.