Stepchild Adoption in Germany

Stepchild adoption in Germany describes the following situation: In a marriage, civil partnership, or blended family, one partner has a child, and the other partner adopts. If a stepparent has already adopted a child, and this parent then remarries or enters into a civil partnership, the new partner can also adopt the child, which is also considered a stepchild adoption. No distinction is made in Germany between opposite-sex and same-sex spouses or civil partners. Stepchild adoption is possible for both minor and adult children.

The general conditions for adoption also apply to stepparent adoption in Germany. The following applies: Adoption is permitted if it serves the best interests of the child and it is to be expected that a parent-child relationship will develop between the adoptive parent and the child. (Section 1741 (1) sentence 1 BGB)

In contrast to third-party adoption, where German law stipulates a minimum age of 25 for the adopting parent, a stepparent may adopt their partner’s child if one of the parents is 25 and the other is at least 21 (see Section 1743 BGB).

Both the child’s parents and the child themselves – or, in the case of their legal incapacity, their legal representatives – must consent to the (stepchild) adoption. It should also be noted that the child must be at least eight weeks old, see Section 1747 (2) BGB.

Section 9a AdVermiG stipulates that for stepchild adoptions in Germany, both the parents of the child to be adopted and the adopter, as well as the child itself, must seek counselling from the adoption agency before the adoption. This counselling requirement does not apply if the adoptive parent is married to the child’s parent at the time of the child’s birth.

The adoption procedure is the same for all types of adoption. Part of the procedure is the “foster care period”, according to Section 1744 BGB, which precedes the adoption and is intended to help the child settle into the family. It is at the family court’s discretion to determine how long such an adoption foster care period should last. In the case of a stepchild adoption, the foster care period consists of the continuation of the previous cohabitation. It is usually, at least if the cohabitation has already lasted for several years, significantly shortened.

It is essential to remember that an adoption that has already occurred remains in place, regardless of whether the relationship between the parents continues. The stepparent who has adopted the child remains a parent even if they are no longer in a relationship with the other parent. In addition, the adoption of a stepchild terminates the legal relationship between the child and the biological parent and their relatives. This impacts parental custody and visitation rights, maintenance claims, and inheritance issues.

An exception exists in the case of the previous (i.e., the biological) parent’s death: the family relationship with the previous parent does not end. This gives the child an additional family line without giving up the legal connection to the deceased parent and their other relatives.

German law stipulates that a child has a mother and a father. The mother is the person who gives birth to the child, see Section 1591 BGB. The father is the person who is either married to the child’s mother at the time of the birth, who acknowledges paternity or whose paternity has been legally established, see Section 1592 BGB. If a woman is married at the time of the birth, her husband is legally considered the father. Genetic kinship is not relevant in this case.

When same-sex marriage was legalised in Germany in 2017, Sections 1591 et seq. BGB was not adapted. Thus, the wife of the woman giving birth is not automatically considered a co-mother by law, nor is the husband of the recognised father considered a co-father. However, co-parenthoods that already existed due to a foreign decision have been recognised by German courts in several cases without the need for (stepchild) adoption proceedings.

In the case of a stepchild adoption in the context of same-sex marriage, there is, therefore, the peculiarity of the necessity of a (stepchild) adoption, which does not exist in the case of opposite-sex married couples. Since the introduction of same-sex registered partnerships, but at the latest since the introduction of same-sex marriage, there has been a dispute as to whether the need for adoption for same-sex couples, in contrast to opposite-sex couples, does not constitute unequal treatment and thus violates the principle of equality under Art. 3 of the German Constitution (GG). Several courts have already ruled on this question. In 2018, the Federal Court of Justice (BGH) had such a case. The BGH argued that although the legislator had introduced same-sex marriage, the conditions for an analogous application of the parentage regulations were not met because the legislator deliberately only changed the marriage laws but not the parentage regulations.

In 2021, however, the Celle Higher Regional Court ruled, contrary to the opinion of the Federal Court of Justice, that ‘an interpretation in conformity with the constitution or analogous application of § 1592 no. 1 of the German Civil Code to establish co-motherhood […] is not possible‘, i.e. it is not possible to declare the married woman to be the mother to be a co-mother per the constitution. Therefore, the court was of the opinion that the norm was incompatible with the Basic Law. The court submitted this question to the Federal Constitutional Court for a decision. Other courts have also submitted this question to the Federal Constitutional Court since then. The answer remains to be seen; the proceedings are being conducted under case number 1BvL 1/23.

In January 2024, the Federal Ministry of Justice presented vital points for a reform of the law of parent and child. The reform includes changes and innovations in the law of parent and child, adoption law and the law of parentage to adapt the legal situation to the modern, diverse reality of family forms and life constellations. The BMJ expects the legislative process to be completed by 2025.

• The previous requirement for stepchild adoption in same-sex marriages will no longer apply: if a child is born to two women in marriage, both women will then automatically be legal mothers of the child (unless otherwise agreed).
• If the two women are not married, the birth mother’s partner should be able to acknowledge motherhood in the future with the birth mother’s consent.
• This means that the two-parent principle will be retained, but in the future, another woman can become a mother by virtue of marriage or recognition in addition to the birth mother.
• In addition, there are to be transitional solutions for children who were born after the introduction of same-sex marriage but have not yet been adopted.