Jakob Weinrich, LL.M. - Your lawyer in Vienna.

Custody - Who gets it?

When parents divorce, custody is often a contentious issue. The central question is whether and to whom (sole) custody should be granted.

Custody encompasses parental rights and duties regarding care, upbringing, property management and legal representation of the children. Depending on the age of the children, this concerns a wide range of decisions. Concrete topics of dispute are often the choice of kindergarten or school, change of residence or medical treatment. Whoever holds them also determines the main residence.

In principle, joint custody of the parents remains after the divorce. However, it is also possible to agree on a change of custody, because it is easier for both parents. If, for example, one parent moves abroad, it may be difficult to participate in joint custody. In the case of a divorce by mutual consent, agreement on custody (regardless of the outcome) is even a prerequisite for its implementation.

However, in the case of (disputed) divorces, parents often apply for the transfer of custody. However, marital misconduct is usually not a reason for a change. Such a change always requires a threat to the best interests of the child.

The right of contact is often confused with the right of custody. Contact with the children can be agreed or granted independently of the custody arrangement. Provided that there is no risk to the welfare of the child, a right of contact can also be obtained more quickly from the court than custody.

In addition to the right of contact, the non-custodial parent also has the right to information and expression. The non-custodial parent must be informed of all important measures and decisions taken by the custodial parent. Examples from case law are the change of name, religion or place of residence. The children's success at school can also be an important matter. In addition, the court can also authorize the non-custodial parent to obtain information from doctors or schools himself.

Before embarking on (protracted) custody proceedings, you should clarify whether you cannot meet your parental obligations or needs with the available rights of contact, information and expression.