Right of contact means the basic right of contact between parents and children. It applies to the parent who does not primarily live with the child, but it is also a right of the child. There is no specific law on exact (minimum) contact times. It always depends on the individual case and what is best for the child. This will be a different right of contact for an infant than for an eight-year-old child where both parents are intensively involved in the care. In principle, the right of contact should include times of leisure and everyday life and neither parent should be forced into the role of an occasional visitor. Normally, it is assumed that children benefit from regular and reliable contact with both parents.
If you do not agree on the right of contact
In the best case scenario, parents can agree on contact rights together. However, this does not always work. There are often concerns of one or both parents that stand in the way of an amicable solution. Parents feel responsible for the well-being of their children. It becomes particularly difficult when one parent has doubts as to whether the child is doing well with the other parent or worries whether certain circumstances in the other parent’s environment could affect the child’s well-being. It is often the case that one parent is generally in favor of contact with the other parent, but wants certain restrictions, conditions or other “protective measures”.
For example, the ex should only see the children under supervision, or the new partner of the other parent should not be present during contact, or you do not want certain places to be visited with the children (often ex-parents-in-law). If there is still a (minimum) basis for communication between the parents, a joint solution can sometimes be found (e.g. through mediation). If this is hopeless, the next step is to go to court, where appropriate applications can be made. The court focuses on the best interests of the child when making a decision.
What is the legal situation? When are conditions or restrictions on the right of contact possible?
The right of contact is a fundamental human right between parents and children. It therefore is only possible to restrict this right in exceptional cases. In principle, parents should be free to organize “their” contact time with the child individually. This means that it is up to them whether they decide to take their child to the park or the zoo, visit grandma or stay at home. Bans on not going to certain places, accompanied contact in visiting cafés or other conditions are restrictions on the right of contact. These are only permissible if specific circumstances indicate a risk to the child’s welfare. However, abstract fears alone do not justify restrictions, conditions or prohibitions. In other words: If one parent wants to prevent the other parent from visiting grandma during the other parent’s contact time because they have never seen her before, this will not work. If grandma has a dangerous, sharp and biting dog that cannot be kept safe, things may be different. It’s similar with supervised contact. If it is in the best interests of the child, the court can order accompanied visits. This decision depends on the circumstances of the individual case. Accompanied contact is only permitted if the unaccompanied exercise of contact rights is not compatible with the child’s best interests. Accompanied visits can also be about re-establishing contact with the separated parent, i.e. restoring contact.
How do courts decide?
On 25.2.2021, the Supreme Court dealt with the issue in 3 Ob 217/20p. In this specific case, the child lived with his father and the mother was entitled to weekly weekend contact. The father applied for the mother to be ordered not to go to a certain place with the child. An exchange of fire with the police had previously taken place at this location (family home but not the mother’s place of residence). The mother was present at this exchange of fire, the child was not. The court of first instance dismissed the father’s application with reference to the fact that abstract fears are not sufficient to impose conditions regarding the location. The court of first instance also emphasized the one-off nature of the incident and the fact that the mother only visited the property occasionally. The Court of Appeal did not uphold the father’s appeal. The Supreme Court overturned the decisions of the lower courts and ordered the court of first instance to make a new decision after completing the proceedings. It stated that the father’s submissions were not based on merely abstract fears, but rather, with the references to a shooting with two seriously injured persons, weapons and narcotics offenses, he asserted several concrete circumstances that indicated a risk to the child if the right of contact was exercised at this address. The court of first instance was ordered to investigate in more detail whether there were circumstances that would rule out such a risk to the child at this location.
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