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Joint custody when residing abroad?

Joint custody when residing abroad?

When people do not part on particularly good terms, they often no longer want to know anything about each other. If one has children together, this is not possible. Whether one wants to or not, one will inevitably remain connected. The children are a mutual concern. As a lawyer, one can experience how bitterly disputes over custody can be fought. One reason for this is the misconception that custody has something to do with how often one is allowed to see one’s child. But this is not the case. Who is allowed to look after the children and when is a question of contact law.  Custody refers to the care and upbringing of the child, legal representation, and administration of property. Such questions do not become easier (in court) if one parent lives abroad.

The matter of custody

The legal situation in Austria generally is that the mother has sole custody in case of unmarried parents. However, the parents can easily establish joint custody, either at the registry office or in court. If the parents are separated, the place of main care of the child must also be determined. This is usually the parent with whom the child stays more often, usually the mother. If no agreement can be reached, an application for joint custody can be filed with the competent district court. Since 2013, joint custody should rather be the standard case. However, the court evaluates the specific situation, if there are good reasons that oppose joint custody, it will not be granted. If the parents are married, both are automatically entitled to joint custody.

How does it work in court?

If the parents cannot agree on issues of custody and/or contact rights, the court is called upon. Family court judges usually first try to force an agreement between the parents. Concerns and fears are heard on both sides and sometimes, with the support of the court, a solution can be found that is acceptable for everyone. If this is not possible, the court can, for example, ask the family court services (Familiengerichtshilfe), where psychologists or social workers work, to give their opinion. In some cases, an expert is commissioned to provide an expert report on which arrangement would be in the best interests of the child. In the end, it is the court that decides. These are lengthy, emotionally exhausting and sometimes cost-intensive proceedings.

Possible reasons against joint custody

Joint custody should rather be the rule. The basic idea of parenthood at eye level is a good one. The problem with good basic ideas is that they are unfortunately not always applicable to difficult cases. There are situations where joint custody is not the right model and is not a universal remedy. For example, in cases where one parent uses the children as an excuse to terrorize the ex-partner. If a parent abuses his or her custody and manipulates the child or exercises joint custody in a harassing manner, joint custody should not be considered.

In general, the reasons for the separation of the parents are not relevant for questions of custody. Unless these reasons for separation represent a risk to the welfare of the child. Violence against the children or the other parent, for example, is an obstacle to joint custody. Also, if there is not even a minimum of communication or cooperation between the parents, it is necessary that educational and care measures can be discussed. However, communication via email or text message is usually sufficient. Moreover, in case of poor communication, the courts must make a prognosis for the future about the possibility of improving this communication… In this context, it is also worth knowing that one parent must not culpably refuse or impede cooperation and communication to then argue that there is no communication.

When assessing the question of joint custody, yes or no, the most important thing is how best to safeguard the interests of the child. Admittedly, this is a challenge for the courts.

Residence abroad or great distance

When parents live far apart or one parent lives abroad, the question sometimes arises as to whether this stands in the way of joint custody. The short answer is: No, generally not. Even if parents live in different countries, joint custody is possible and does not generally preclude the admissibility of joint custody. A prerequisite of joint custody is the participation of both parents in the care of the child. As a logical consequence, a minimum contact of the parent to the child is needed for the participation in the care tasks. However, this can also be fulfilled from abroad if regular contacts take place and the parent living abroad tries to be involved. It may be relevant, for example, whether the parent living abroad is contactable for the parent living in Austria or is also willing to travel to Austria again and again for contacts etc. The fact that questions as to how and in which form these contacts take place, whether in Austria or abroad, who undertakes long-distance travel, how long and from what age the child can also travel abroad, etc. must also be resolved and bring with them their own potential for conflict, is another matter.

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