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Children´s Rights & Parental Responsibility
International child custody law as seen from an Austrian perspective appears to be simple and straightforward at a first glance: Austrian courts have jurisdiction over children who have their center of life in Austria and they apply Austrian law in their decisions.
However, speaking from vast experience that in practical terms pertaining to individual and specific situations, the matter can be infinitely more complex. For example, consider the following rather commonplace situations in which the following fundamental and profoundly important but also difficult questions may arise:
- A situation in which the mother, who is not married to the father, moves with the child from abroad to Austria. Which law determines which parent has custody rights?
- A situation in which a relationship comes to an end and the mother wants to return to her home country with the children - can she do this? What is required?
- A foreign court awards sole custody to one parent. How can this decision be enforced in Austria?
- The parents have agreed on contact rights abroad, however the mother subsequently moves to Austria with the children. What happens to the contact arrangement?
- The child is abroad, but divorce proceedings between the parents are pending in Austria. Can a custody and contact arrangement be made before the Austrian court?
Not only are we confronted with these questions almost every day in our work, we also have decades of experience in dealing specifically and promptly with these issues. Therefore we can say that (legally valid and efficient) answers to questions such as these require not only prompt action but also profound legal expertise, practical experience and sensitivity.
The term "child abduction" is used when one parent takes or retains the child abroad in violation of the custody rights of the other parent. Of course, this also applies to an "abduction" to Austria. The Hague Convention on Child Abduction counters "kidnapping" by requiring that the courts in the country of removal order the immediate return of the child if an application is made within one year. The abducted child should be returned to the country of origin as quickly as possible. This is because the courts in the country in which the child had lived before the abduction took place are subsequently to decide which parent would have sole custody of the child in future.
What in theory appears to be straightforward is of course, as anybody who has been or is, in this situation may know, far more complex and intricate in practical terms. The actual practical application of the Hague Child Abduction Convention does in fact give rise to a number of problems. As EU law also plays a role in the Convention, crossborder legal variables can create profoundly complex legal situations. RA Dr. Nademleinsky has decades of experience in dealing with these issues. Further, as an accredited leading legal specialist of international family law and seasoned practicing family lawyer, he has dealt with these aspects in detail in the book "International Family Law" (together with Vice-President of the Supreme Court Prof. Dr M. Neumayr) and he regularly reports on current case law as a contributor to the Zeitschrift für Erb- und Familienrecht. His detailed commentary on the HCCA has been published by Verlag Österreich in the handbook "International Family Law" 2018 (edited by Supreme Court judge Dr. Edwin Gitschthaler).
If you are affected by a child abduction or intend to move abroad with your child and do not want to run the risk of being accused of abduction, we would suggest that you contact us.