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Right of contact for grandparents and ex-partners

Legal laypersons often cannot make much sense of the term “contact rights”. Although the term “visitation rights” has not been used in the legal context for some time, many people come back to the term. The reason why visitation rights is no longer used is because it is thought to be misleading in that no parent should be seen as a “visitor”. It is also often unknown that not only parents can have contact rights. But is there a right of contact for grandparents and ex-partners for example? 


Right of contact – also in modern family constellations?

In court proceedings concerning custody or contact rights, the best interests of the child are always at stake. If the parents cannot reach an agreement, the court often has to decide what is best for the child. If the court determines the contacts, it has to take into account the age, the needs and the wishes of the child as well as the intensity of the previous relationship.

But in today’s reality, the family no longer corresponds to the concept of our grandparents. Family no longer necessarily consists of father, mother and child. There are families with two mothers, two fathers or even patchwork families. Biological parenthood is no longer the only possibility for family togetherness. Patchwork families, relationships or marriages, however, are not immune to separation or divorce, and this also raises questions about the children.




Contacts with third parties

The law stipulates that so-called “third persons”, i.e. persons who are not the child’s parents, can also be granted a right of contact. As always, the focus is on the best interests of the child. This means that if contact with the third person is in the best interests of the child, the court can establish contact on application. Third persons are, for example, former partners of the parents who have developed a relationship with the child. But also foster parents or other people in a family setting. In the meantime, these third persons (if they have had a family or special personal relationship with the child) also have their own right to apply to the court. If someone has taken on a social parental role, this person also has the right to apply for contact rights after the relationship has ended. If courts have to decide, the extent of contact to be awarded will also depend on how extensive the relationship between the third person and the child is. Furthermore, to what extent it is in the child’s best interest to maintain it.

In 2018, the Supreme Court had to deal with this issue (9Ob46/17f). In the specific case, the mother’s ex-partner, who also had a child of his own with her, wanted an extended right of contact to the child that the mother had “brought” into the relationship. The requested right of contact even went beyond the right of contact with his own child.  There was an intimate relationship between the child and the ex-life partner and the child referred to him as “daddy”. The child had no contact with the biological father. The mother, however, spoke out against this, arguing that this was not in the best interests of the child because his school matters would then be neglected. The Supreme Court stated that it must also be taken into account that third parties do not have the same parental rights and duties, which must also be reflected in the right of contact to be granted. It also had to be taken into account that the involvement of a third party against the declared will of the parent with custody entailed the risk of a lasting disruption of family life, which could then also have a detrimental effect on the best interests of the child. In the case at hand, the ex-partner had the same right of contact with the child as with the natural child.


Grandparents’ right of contact

In some constellations, grandparents can be less popular with the parents. Often sympathies do not suddenly rise even after a separation. Rather, the opposite is the case. However, it is often not known that grandparents have their own right of contact.

However, the law imposes restrictions on the grandparents’ right of contact – in contrast to the parents. The grandparents’ personal contacts are to be restricted or prohibited to the extent that the family life of the parents or one of the parents or their relationship with the child would otherwise be disturbed. The right to contact is also less than that of parents in terms of time. There is case law that, for example, one afternoon a month is appropriate for a one-year-old child, or one afternoon every fortnight for a four-year-old child.  

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