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Joint custody and other misunderstandings

Custody and Visitation- is it the same thing?

Custody and visitation – these terms are in Austria surrounded by myths, half-knowledge and misunderstandings. Custody in Austria  is not decisive for how often the children see one parent after a separation. The terms custody and visitation are often mixed up or used synonymously. This leads to confusion because legally speaking, they are completely different things. The most bitter disputes are often not really about custody, but rather about who can see the children on which days and how often.

Custody – leagally speaking?

What does custody actually mean? In simple terms, term custody means the parental duties towards the children. On the one hand, it includes the care and upbringing of the child, but also legal representation and property management. If the parents are married, custody is automatically granted to both parents. If the mother is single at the time of the child’s birth, she is the sole custodian. However, the parents can establish joint custody by mutual agreement at the registry office.

If there is no agreement between the unmarried parents, the father can file an application for (joint) custody with the competent district court. It is often not known that since 2013 joint custody is supposed to be the rule and that the court can also make a custody decision against the will of one parent. In most cases, an application by the father for shared custody will therefore be successful sooner or later. What is necessary for this is at least a minimum of willingness to cooperate on the part of the parents. It must be possible to exchange information in some form. If parents have no basis for communication at all or if there is, for example, violent behaviour towards the other parent or the children, this can make joint custody impossible with regard to the best interests of the child.

Sometimes people fear that with joint custody they will not be allowed to make any decisions on their own or that they will no longer be able to act on their own. But this is not the case. Joint custody is subject to the principle of mutual consent, which means that the parents should always agree on important matters in the lives of the children. Nevertheless, each parent can represent the child alone. For example, if you want to register your child at a school or take your child to the doctor, you do not have to prove that you have the consent of the other parent. Each parent is therefore fully authorised to represent the child externally. Only particularly important issues – such as a change of name, religion or nationality – require the consent of both parents.

What is visitation or right of contact?

Formerly also called visitation rights, contact rights are the right of the parent who does not live with the child to have personal contact with the child. It is also a right of the child. Visitation should not only take place during the child’s free time. In the best case, therefore, there is not one parent who always goes out for ice cream on Saturday afternoons and only enjoys fun activities with the children and the other parent who always checks the schoolwork. If possible, it should allow both the child and the parent to experience a daily routine together. What is often not known is that parents must not only allow contact with the other parent. Rather, they even have the duty to positively attune the children to maintain contact with the other parent and must refrain from anything that may disturb the parent-child relationship.

Unfortunately, there are sometimes  bitter and long disputes about contact rights. In the best case, the parents are able to agree on who will look after the child or children, when and to what extent. In the event of a dispute, the courts focus on the best interests of the child. In addition to the age of the child and its needs, what matters in court is who has been caring for the children and to what extent. The debate can be fuelled by the following rule: the more contact with the child, the less maintenance has to be paid. Some parents therefore accuse each other of only wanting more contact in order to have to pay less maintenance. Or vice versa – they would only want to prevent more contact in order to be able to continue to receive maintenance.


It can be advantageous if both parents are involved in custody. Even if custody is often not that noticeable in everyday life, it makes a difference whether one is entitled to custody or not. Rights and duties always go hand in hand. Furthermore, participation in custody should also result in the takeover of actual responsibility and care. However, if the basis of communication is severely and permanently destroyed and one parent torpedoes the other wherever possible, joint custody can become a problem and be at the expense of the children and all involved.

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