Custody and Visitation Rights in Vienna
When parents separate, the most difficult questions remain unanswered: Where will the child live, who will make decisions about the child’s affairs, and how often will the child see the other parent? The law does not provide a ready-made answer—it evaluates every solution based on the child’s best interests. That is precisely where it becomes clear how well prepared your case is.
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What Custody Encompasses
Custody is more than just a matter of who the child lives with. It encompasses the child’s care and upbringing, the management of the child’s assets, and the child’s legal representation. The person with custody decides on school choice, medical treatment, a passport, and place of residence—and, in turn, is responsible for ensuring that the child is properly cared for.
Visitation rights must be distinguished from custody: Visitation rights govern personal contact between a child and the parent with whom the child does not primarily live. Both can be addressed separately and brought before the court separately.
After separation and divorce, joint custody remains in place
If both parents had joint custody, the separation does not change this: joint custody continues (Section 179 of the Austrian Civil Code [ABGB]). What the parents must submit to the court is an agreement specifying in which parent’s household the child will primarily be cared for. In a divorce by mutual consent, this provision is part of the mandatory agreement required under Section 55a(2) of the Marriage Act (EheG).
This determination is required even if the child actually spends roughly equal amounts of time with both parents. The Supreme Court has explicitly clarified this (OGH 24.8.2016, 3 Ob 121/16i): One parent must be designated as the primary caregiver because this determination has a number of legal consequences—ranging from the child’s primary residence to benefits and child support.
If a parent seeks sole custody
If the parents cannot agree, the district court will decide. The sole criterion is the best interests of the child, as outlined in § 138 of the ABGB: adequate care, support, reliable contact with both parents, protection from harm, and consideration of the child’s opinion, depending on the child’s age.
Sole custody is granted to one parent if joint custody is not in the best interests of the child (Section 180 of the ABGB). In practice, the most common reason is not misconduct, but rather such a profound breakdown in the parents’ relationship that joint decision-making is no longer possible. Conversely, a parent who seeks sole custody solely because dealing with the other parent is difficult will rarely succeed in court.
The Phase of Provisional Parental Responsibility
If there is a dispute over what form custody should take in the future, the court may initially issue a provisional order for a period of six months (Section 180 of the ABGB). This phase is intended to test whether joint custody can work despite the conflict. What happens during these months significantly influences the subsequent decision—this is not a waiting period, but the actual evidentiary phase.
The Right to Visitation
The right to contact under § 187 of the ABGB is, first and foremost, a right of the child. The child—and not the parent who is the primary caregiver—is entitled to regular personal contact; both parents have a duty not to interfere with the child’s relationship with the other parent.
There is no legally prescribed list specifying how often or for how long. It is common to have arrangements regarding weekends, weekdays, school breaks, holidays, and birthdays, as well as agreements on drop-offs and pick-ups, vacations, and trips abroad. The more specific the arrangement, the less room there is for dispute later on—an agreement that merely refers to “reasonable contact” is worthless in the event of a dispute.
If visitation rights are not respected
If contact is thwarted or denied, the only recourse is through the courts. The court can order a visitation mediator to oversee and document handoffs, and it can enforce an existing arrangement using appropriate coercive measures. What matters most is clear documentation of missed appointments—it is not the accusation, but the documented sequence of events that carries weight.
Dual Residence and Alternating Custody Arrangement
Shared custody, with the child spending roughly equal time in two households, is permitted but poses significant challenges: geographical proximity, reliable communication between the parents, and a child for whom the constant back-and-forth is not a source of stress. It is ordered against the express wishes of one parent only in exceptional cases, because it requires precisely the kind of cooperation that is lacking in the conflict. You can find more details on custody arrangements in our article “Custody After Separation.”
It is also important to note that equal shared custody affects the obligation to pay child support but does not automatically eliminate it. We discuss the financial implications of this under “Child Support.”
Moving and Traveling with a Child
Moving to a new place within Austria is different from moving abroad: The latter has such a significant impact on the child’s well-being that, in cases of joint custody, it cannot be decided unilaterally. Even when it comes to vacation trips, it depends on where you’re going and how long you’ll be away. For more details, see our article “Vacationing with a Child After a Separation.”
How the Process Works
Custody and visitation proceedings are non-contentious proceedings and are conducted in the district court of the child’s habitual residence. The court regularly consults with family court services, hears the child directly depending on the child’s age, and may order parenting counseling or mediation. If necessary, the child may be assigned a dedicated child advocate.
When immediate action is needed, temporary arrangements may be made—for example, if a child is being withheld or contact is abruptly severed. Similarly, any existing arrangement may be modified if circumstances change significantly—a custody decision is never final in the sense that it applies forever.
How We Represent You
We will frame your position in a way that stands up to the standard of the child’s best interests, rather than phrasing it as an accusation against the other parent—the latter typically does more harm than good in these proceedings. This includes robust documentation of child-care arrangements, clearly formulated proposals for arrangements, and representation at daily hearings and investigations conducted by the Family Court Assistance Service. Where appropriate, we’ll work with a psychologist to prepare you for the hearing and help you navigate the dynamics of the conflict.
The cost depends on how the case proceeds. You can find an overview of our billing models under “Attorney Fees.”
Dispute over custody or visitation rights? During the initial consultation, we’ll determine what can be resolved out of court and what you can realistically achieve in court.
Schedule an appointmentFrequently Asked Questions About Custody and Visitation Rights
No. If both parents had custody, joint custody remains in effect after the separation. The only issue to be resolved is in which parent’s household the child will primarily live. Any change to the custody arrangement itself requires a court order.
If joint custody is not in the best interests of the child (Section 180 of the ABGB). In practice, this is primarily the case when the parents are so at odds that joint decision-making is no longer possible, or when one parent is unable to fulfill their parental responsibilities or poses a threat to the child. Mere disagreements are not sufficient.
The law does not provide a specific list of criteria. The decisive factors are the child’s age and needs, the child’s previous care arrangements, the distance between the parents’ residences, and the parents’ work schedules. It is common to establish arrangements for weekends, weekdays, school breaks, and holidays—the more specific the terms, the more enforceable they are in the event of a dispute.
If a court order or settlement is already in place, an application may be filed to enforce it; the court may order visitation mediation and impose appropriate enforcement measures. This requires verifiable documentation of missed visits. Unilateral actions—such as withholding child support—are prohibited and undermine one’s own position.
It is possible, but it also comes with many conditions: It requires geographical proximity, reliable communication, and a child who is not negatively affected by the constant back-and-forth. Even when custody is divided almost equally, it must be determined in which parent’s household the child will primarily reside (OGH 3 Ob 121/16i). It is ordered against the will of one parent only in exceptional cases.
In cases of joint custody, do not act unilaterally. Moving abroad has a significant impact on the child’s welfare; if the other parent does not consent, the court must decide. Anyone who moves abroad without resolving this issue risks return proceedings under the Hague Convention on Child Abduction.
Let's talk about it
During the initial consultation, we will determine which arrangement is feasible for your child, what can be achieved out of court, and how to prepare for legal proceedings.
Schedule an appointment or call: +43 1 99 741 21