This page is now obsolete. The update is currently being prepared and will be available in the European e-Justice Portal.
Austrian family law uses the term “Obsorge” (custody) to define parental responsibility for a child. For the purposes of the Act, “Obsorge” means the right and duty to care for and bring up a child, to manage that child’s finances and to represent him or her in these and in all other dealings with other people. In the execution of these duties and when exercising these rights the parents must act jointly.
The custody of a legitimate child falls automatically to the father and mother from birth, while the custody of an illegitimate child falls automatically to the mother from birth. This arises directly from the Act and does not require a decision by the courts.
If the parents (or others entitled to custody) represent a threat to the child’s welfare, the courts may (partly) take away custody from them and transfer it to another suitable person. That person must be selected in the first instance from the child’s relatives, and failing that from others who are close to the child. If no other suitable person can be found, the courts will transfer custody to the Youth Welfare Officer (Youth Welfare Office). If the child is in imminent danger the Youth Welfare Officer is also obliged to take appropriate action, although he must subsequently involve the courts. The transfer of custody to the Youth Welfare Officer does not depend on whether the parents were the cause of or to blame for the problems involved in bringing up the child. This action serves to maintain the best interests of the child, irrespective of such considerations.
The transfer of custody, however, may also be effected by an arrangement between the parents and the Youth Welfare Officer (in such cases the parents may revoke their consent unilaterally).
The Youth Welfare Officer may, when exercising custody, engage other people, for example by lodging the child with a suitable foster family or in a children’s home.
Here a distinction must be made between legitimate and illegitimate children:
Since the Act of 2001 amending the law relating to children came into force on 1 July 2001, parents have had extensive opportunities following separation to make their own arrangements for custody. In the event of divorce, the joint custody of a minor child of the marriage in principle remains intact, although if they wish to maintain full joint custody as in marriage the parents must, within a reasonable period of time, submit an agreement on the child’s primary place of residence to the courts. The courts must approve this arrangement if it reflects the interests of the child. If no arrangement of this kind is produced within a reasonable period after the divorce, or if it does not reflect the interests of the child, the courts must decide, in the absence of an amicable agreement (if necessary involving arbitration) , which parent will be granted sole custody.
The parents, however, may decide in advance that one of them will have sole custody once the marriage has been dissolved.
If both parents share custody, either of them may at any time petition for that joint custody to be revoked. The courts will then grant sole custody to one of the parents on the basis of the child’s own interests.
Partners who have a child together may also be entrusted with joint custody. In response to a joint application by the parents of an illegitimate child who live with the child and who share their domestic arrangements, the courts will entrust the parents with joint custody, provided this reflects the interests of the child; if the partners separate, the statements made at (1) above on custody in the event of the dissolution of the parents’ marriage shall apply. Thus in principle partners who have a child together have the same opportunities to make arrangements for custody as the parents of a legitimate child.
Agreements reached by parents which represent a departure from the arrangements for custody laid down in the Act require the approval of the Court of Guardianship.
The courts must always attempt to bring about an amicable agreement, if necessary involving arbitration.
If the parents have joint custody, either of them may at any time petition for that joint custody to be revoked. The courts will then grant sole custody to one of the parents on the basis of the child’s own interests. On the other hand, the courts cannot make an order for joint custody against the will of the parents (or of one of them).
If one parent does not live in the same household as their minor child, that parent and the child are entitled to have contact with each other; this is known as access. The parents must jointly regulate the way in which access rights are exercised. If no such agreement can be reached, the court must regulate the way in which this right is exercised with due consideration for the needs and wishes of the child and in a way which serves the child’s interests. If necessary, the court can restrict access or even deny it altogether.
If a claim for maintenance is affirmed legally the court must take due account of the actual circumstances of the individual case when calculating the amount of maintenance. In this case both the child’s reasonable need for maintenance and the ability to pay by the parent obliged to do so are decisive.
Natural parents who do not have custody have certain rights of communication. This relates, for example, to access rights (see response to 7). A parent who does not have custody is entitled to be informed of important matters by the other parent so that they can watch their child growing up. Such important matters include illnesses, taking part in the child’s educational successes, the successful completion of occupational training, as well as language holidays abroad and other lengthy absences from home. A change of home – either within the country or abroad – is also possible without the consent of a parent who does not have custody, provided he or she is notified. Such notification must be provided in time for the parent who does not have custody to comment on the plan. The courts must take note of such comments if the wishes they express better reflect the interests of the child. If the parent with custody persistently fails to fulfil their duty to tolerate and support access or their duty to provide information, the court may, on application (or if the child’s welfare is threatened) , make suitable provisions. Conversely, the court may also restrict access and the right to information or remove them altogether if the child’s welfare might be threatened by the exercising of those rights.
It should firstly be reiterated that the courts may not make an order for joint custody against the wishes of the parents (or even one of the parents in isolation). This always requires the parents’ agreement. If this cannot be achieved, the courts must grant custody of the child to one of the parents in isolation, taking the child’s welfare into consideration.
Custody consists, as regards its internal relationships, in care and upbringing and the management of assets, and as regards its external relationships in legal representation.
In the internal relationship couples granted custody will exercise it jointly. In the event of disagreement on an important matter concerning the child, either parent may appeal to the courts, which must make the necessary provisions.
In the external relationship each parent in principle has the authority to act in isolation as the child’s representative (e.g. issue of passports, registration for school) , i.e. either parent may as the child’s representative raise effective documents against the wishes of the other. However, if contradictory documents are submitted at the same time neither will be effective. In some matters, however, representation requires the consent of the other parent. This includes a change in the child’s forename or surname, transfer to the care of a third party, applications for and renunciations of citizenship, etc.
In the case of particularly important financial matters the approval of the courts may also be required.
An application for the transfer of custody must be submitted to the district court within whose jurisdiction the minor is habitually resident; if the minor is not habitually resident in Austria, then wherever he or she is otherwise resident. If he or she is not resident in Austria, the court within whose jurisdiction the legal representative is habitually resident will be competent. If he or she is also not habitually resident in Austria the court within whose jurisdiction one of the parents is habitually resident will be competent, and otherwise the district court for Central Vienna.
The application must be submitted in non-contested proceedings; there are no special formalities which have to be observed. Although it is not mandatory to enclose any documents with the application, it is advisable to enclose any documents which support the application.
Custody is agreed in non-contested proceedings. Temporary legal protection is also possible in the case of non-contested proceedings.
Legal Aid is also possible in proceedings of this kind in accordance with the standard rules (see “Legal Aid – Austria”).
An appeal is permissible against a decision by a court of the first instance on the allocation of parental custody. The appeal will be addressed to the Provincial Court which serves as the court of the second instance for the competent district court. An appeal to the Supreme Court on a point of law against a decision by the court of appeal is only permissible if the decision depends on the resolution of a legal question which has considerable bearing on the maintenance of the legal entity, to legal certainty or to the evolution of the law, for example because the Court of Appeal adopts a position which is at variance with the jurisprudence of the Supreme Court or if the latter is absent or inconsistent.
Court decisions on custody are enforced in non-contested proceedings in accordance with §19 of the Law on Non-Contentious Proceedings by employing suitable means of coercion.
Decisions on custody which are handed down in respect of the children of both spouses on the occasion of proceedings which are concerned with divorce, separation without the dissolution of marital ties or the annulment of a marriage, will be duly recognised and enforced between the Member States of the European Union, with the exception of Denmark, in accordance with Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, OJ L 2000/160, 19 (hereinafter: Brussels II Regulation).
Enforcement is conditional on a declaration to the effect that the foreign decision on custody is enforceable in Austria. An application for a declaration that the foreign decision on custody is enforceable in Austria must be submitted to the district court within whose jurisdiction the party opposing the petition or the child habitually resides. If neither is habitually resident in Austria the competent local district court will be decided by the place of enforcement. An application for a declaration of enforceability must be accompanied by an official letter of confirmation issued by the court in the country of origin as well as a copy of the decision. In the case of decisions handed down in default proceedings, the submission of additional documents (see Article 32(2) of the Brussels II Regulation) is prescribed.
In the case of straightforward (non) -recognition proceedings the places of jurisdiction specified in §109(2) JN are also available. The competent court is then the court within whose jurisdiction the legal representative is habitually resident or, if he or she is not habitually resident in Austria and a minor is involved, the court within whose jurisdiction one of the parents is habitually resident, and otherwise the district court for Central Vienna.
See response to 15.
In principle it is the personal status of the child (right of domicile) which determines custody. Account must be taken of referrals forwards or backwards to the definitive right. If, however, the minor is habitually resident in Austria, a court will, if required, take the necessary action on custody in accordance with Austrian law, even if the parents do not live in Austria and none of those concerned is an Austrian citizen. The legal authority associated with the minor’s right of domicile should, however, also be recognised in this instance.
Last update: 04-05-2005