Allocation of child-raising periods

According to the Federal Social Court, the plaintiff - a father from Hesse - and the child's mother initially lived in the same household with their daughter, who was born in 2001. The parents did not make a joint declaration regarding the allocation of parental leave. The husband continued to work full-time after the birth of the daughter. The mother only took up part-time employment again shortly before the daughter's sixth birthday. She moved out of the shared apartment in November 2008. Since then, the father and mother have lived apart permanently. According to the BSG, the mother's whereabouts are now unknown. The suspension of her parental custody had been determined by the family court.

The defendant pension insurance provider noted the period from the time the mother moved out with the father as a period to be taken into account due to raising children. For the time prior to this, it refused to record pensionable periods due to raising children. As no concordant declaration had been made regarding the allocation of the child-raising period and it had only been possible to prove that the plaintiff had raised the child predominantly from November 2008, the period was allocated to the child's mother.

The father raised constitutional objections to this. He was disadvantaged on the basis of his gender if the child-raising period was allocated to the mother in the case of joint upbringing by the parents, where it could not be proven that one parent was the main parent. The underlying role and family image also no longer corresponds to social reality.

Like the two previous instances, the Federal Social Court has no constitutional objections to the parenting time being allocated to the mother if the parents have not made a joint declaration regarding its allocation and there is no predominant upbringing by one parent. It is true that the application of the standard rules leads to a direct disadvantage for the child's father. "However, the unequal treatment is exceptionally justified in order to realize the principle of equality", the Kassel judges justified their decision.

"By assigning the child-raising period to the mother in case of doubt, de facto disadvantages are compensated for which exist as a result of the child-raising work in the acquisition of entitlements in the statutory pension insurance and which continue to affect women significantly more often than men", they explained. Although the employment rate and, in some cases, the amount of time mothers with children under the age of three and beyond spend in employment has increased, it is still significantly lower than that of fathers.

"This catch-all provision, which favors mothers, is also proportionate.
"The other allocation regulations leave sufficient room for the allocation of parental leave to a male parent.