The father is a German citizen
If a father who is a German citizen is not married to the mother, he first has to acknowledge paternity for the child. The German citizenship will then also be conferred to the child, pursuant to sections 3 and 4 of the Nationality Act.
As it is the case with binational marriages, it will often be alleged that paternity is only acknowledged in order to secure German citizenship for the non-German mother.
A relatively new legal regulation in section 1597a of the German Civil Code (BGB) thus provides that notaries or other authorities with the right to issue notarisations, particularly the youth welfare office, are not allowed to record claims of paternity if there are “concrete indications for an abusive use of the acknowledgement of paternity”.
The acknowledgement of paternity will be considered “abusive” if it serves the specific purpose of establishing the conditions necessary for the legal entry or residence of the child, father or mother or if it merely serves to obtain German citizenship for the child.
The legal regulation comprises five examples specifying situations in which abusive use will be assumed. The examples refer, among other things, to cases where there is an obligation to leave the country that can be enforced or to cases where the father, mother or child have filed an asylum application, although they are citizens of a safe country of origin, pursuant to section 29a of the Asylum Act. If such indications exist, then notaries, youth welfare office or civil registry office are required to report the “case” to the foreigners’ office.
The foreigners’ office will then establish whether the request for acknowledgement of paternity is actually “abusive” or not. Usually the parents will be personally interviewed for this purpose. If the foreigners’ office establishes that the request for acknowledgement of paternity is not “abusive“, then paternity will be certified. If the foreign mother and the child do not otherwise hold a residence permit, their deportation will be suspended until the procedure is concluded (section 60a, subsection 2, sentence 1 of the Residence Act.
If the father is a German citizen, the German citizenship will also be conferred to the child.
The mother will in this case be granted a residence permit until the child attains full age (section 28, subsection 1, sentence 3 of the Residence Act).