Decision of the OLG Oldenburg from January 14, 2025 – Ref.: 13 WF 93/24
Who is the father? This question concerns children, parents, and courts. Normally, the question can be answered through a paternity test. However, if identical twins are considered as the father, it becomes more complicated. The OLG Oldenburg has now made it clear with its decision from January 14, 2025, that sequencing the entire genome can be ordered for clear determination of paternity and that this is reasonable for the twin brothers (Ref.: 13 WF 93/24).
Clarifying paternity is not only emotionally important for the child and potential father, but also has legal implications, for example, regarding custody, maintenance claims, or inheritance claims, as well as tax implications. According to the law, the father is the one who was married to the mother at the time of the child’s birth, has acknowledged paternity, or paternity has been established by the court. Judicial determination may be required if the mother was unmarried, paternity acknowledgment was refused, or no one has acknowledged paternity. Both the child, the mother, and the potential father can apply for determination of parentage at the competent family court.
Consent to paternity test
The court usually orders a DNA test to determine paternity. A fundamental prerequisite is that all parties agree to it. However, even if this consent is not given, the child, the mother, or the potential father may have a right to consent to a genetic investigation to clarify biological parentage under § 1598a BGB, according to the law firm MTR Legal Rechtsanwälte, which advises on, among other things, family law.
Sequencing of the entire DNA
In the case before the OLG Oldenburg, determining paternity was somewhat more complicated, as two identical twin brothers were considered as the father. A simple saliva sample indicated that one of the twins is the father. However, it remained unclear who actually is the father. This could not be determined by the DNA report.
To clarify paternity, the entire DNA would have to be examined through sequencing. This could reveal even minimal changes in the DNA and distinguish the twins. In this way, the father could be identified. However, the twin brothers refused to consent to the test. They did not succeed with this refusal before the OLG Oldenburg.
Obligation to tolerate investigations to determine parentage
The OLG made it clear that each person must tolerate investigations to determine parentage as long as the investigation can reasonably be expected of them. This obligation concerns both parties involved and witnesses, and therefore also both twin brothers.
Further evidence is necessary since paternity has not yet been clarified, and there are doubts regarding the mother’s statements. The intended report is a suitable means of evidence for determining paternity, as it aims precisely at identifying genetic differences between the twins, which could potentially be inherited by the child.
Child’s right to know their parentage prevails
The OLG Oldenburg acknowledged that so-called “whole genome sequencing” encompasses the complete DNA of the subjects and, unlike a “genetic fingerprint,” can also provide insights into psychological, character, or disease-related personality traits, and thus could infringe on the right to informational self-determination of the subjects. This right also includes not disclosing one’s genetic make-up. However, this is weighed against the child’s right to know their parentage. Knowing one’s parentage could be significantly important for the development of one’s personality.
Even though there is no guarantee through sequencing of the entire genome that the father will be identified, in the overall assessment, the child’s right must be given priority, according to the OLG Oldenburg. It should be considered that only the two twin brothers are considered as potential fathers. Further investigation is also reasonable for them.
The OLG has allowed the legal complaint to the BGH.
MTR Legal Rechtsanwälte advises on issues of paternity and parentage as well as on other topics of family law nationwide.
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