“I’m getting divorced and want sole custody!”. The desire for sole custody of the children is sometimes a big one. In legal practice, you often have the unpleasant role of explaining to parents that sole custody cannot be obtained after a divorce with the argument that you simply no longer want to deal with the other person.
Custody in Austria
The reform planned by the Federal Ministry of Justice, according to which custody should be replaced by “joint parental responsibility”, is currently not ready for discussion. The legal situation in Austria is still such that if the parents of a child are not married, the mother has sole custody of the child. However, the parents can agree on joint custody. If the parents of the child are married, they automatically have joint custody. In the context of a divorce, it is also a question of how the situation can continue for the children.
For a divorce to be amicable, the parents must agree who will have custody of the child after the divorce and who will look after the children and when (contact right). While custody is not always noticeable in everyday life, it is still relevant. Who has custody or not is decisive for medical issues, place of residence, school, etc., i.e. for essential things in the child’s life
What are the reasons that justify a withdrawal of custody?
For some years now, there has been a clear trend towards joint custody. A court can order joint custody even if not both parents agree. For example, if parents are not married and the mother has sole custody, but the father is involved in the child’s life and is prepared to take responsibility for the child, he will normally be successful if he applies for joint custody. If there are serious reasons that speak against joint custody, such as violence, the situation may of course be different.
However, if joint custody already exists because the parents may have agreed on this or because they are married and there is no agreement on the sole custody of one parent, a court application must be made to withdraw custody. In matters relating to custody and contact rights, the court puts the child’s welfare first. This means that the court is concerned with what is best for the child. The mere wishes of the parents are not so decisive. The court will often consult experts, such as experts or family court assistance, who will make a recommendation.
In order for a parent to be deprived of custody or for a parent to be given sole custody, there must be a risk to the child’s welfare. In other words, there must be serious reasons. The fact that one parent has the feeling that it would be “just easier not to have to consult with the other parent all the time” is neither a reason for sole custody, nor is it advisable to bring this up in court. It is also usually not relevant whether a person is a bad husband or a bad wife. In other words, if you can prove that the other person is cheating, this is helpful for the divorce proceedings, but usually has nothing to do with custody.
Sometimes you see parents who think they can “secure” sole custody by, for example, having photos to prove that the other parent consumed marijuana for their birthday three years ago or drank too much in company. You most possibly do not win anything with that kind of argument. Drug use is bad per se, but even there it depends on the circumstances. Of course, it makes a difference whether marijuana is smoked only sometimes or whether someone regularly consumes hard drugs and is no longer able to function in everyday life.
Such behavior that endangers the welfare of the child, which may make it necessary to withdraw custody, could be if a parent is no longer able to care for the children due to severe alcohol or drug abuse or mental illness and or if there is a risk of neglect of the children.
It will also constitute a massive risk to the child’s welfare if, for example, a parent persistently violates the prohibition of violence towards a child. This also applies if a parent tolerates violence by third parties, for example. Or it could be a risk to the child’s welfare if a parent refuses necessary medical treatment or simply takes the child abroad, for example.
Courts have a difficult task in such custody proceedings. Decisions have to be made on a case-by-case basis about the overall behavior of the parents – and: The best interests of the child take precedence over parental rights.
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