Arranging custody after a separation or divorce is one of the most emotional and important decisions parents have to make. It determines who makes the key decisions for the child and how their everyday life is organized. Austrian law and the current case law of the Supreme Court (OGH) provide clear guidelines for this—the focus is always on the welfare of the child.
Legal framework: Joint custody as the norm
Under Austrian law, joint custody by both parents remains the legal norm even after the dissolution of the domestic partnership. The courts generally assume that it is best for a child if both parents continue to take responsibility. The sole criterion for any decision is the welfare of the child. The parents' ability to cooperate and tolerate attachment—i.e., their ability to respect and promote the child's relationship with the other parent—plays a central role in this.
Joint vs. sole custody: Position of the Supreme Court
Whether joint or sole custody is ordered depends largely on whether the parents can cooperate in the best interests of the child. The Supreme Court requires a minimum level of cooperation and communication; perfect harmony is not necessary. Objective communication, for example by email or messenger, may be sufficient as long as a reliable exchange of information is possible.
For parents, this means that as long as you are able to talk about your child in a factual manner and make joint decisions, there is a good chance that joint custody will be maintained. Courts can also order measures such as parental counseling to provide support.
Sole custody is granted if joint custody is detrimental to the child's welfare—for example, in cases of serious, irreconcilable conflicts, violence, endangerment of the child's welfare, or a complete lack of willingness to cooperate. A significant change in circumstances, such as a complete breakdown in communication or a severe lack of tolerance for attachment, may justify a change in an existing custody arrangement.
Alternating custody (dual residence) from the perspective of the Supreme Court
In the alternating model, also known as dual residence, the child lives approximately the same amount of time in both parents' households. Although the law requires that a primary place of care be specified, this does not preclude equal sharing of care if this is in the best interests of the child.
The requirements are high: the Supreme Court demands that the parents have particularly good cooperation and communication skills, that their places of residence are close to each other (school, friends, leisure activities) and, depending on the age of the child, that the child wants this. Stability and continuity are paramount; too many changes of household can be problematic.
Nest model: Rare, mostly temporary solution
In the nest model, the child remains in the previous home, while the parents take turns living there and caring for the child. The advantage lies in the high level of stability for the child, who does not have to leave their familiar surroundings. In practice, however, courts often view this model as only a temporary solution, because three households have to be financed and the shared use of the home harbors considerable potential for conflict.
Focus on the welfare of the child: What courts really examine
Several key points can be derived from current case law: Continuity and stable relationships: Reliable bonds with both parents and important caregivers should be ensured; a change in custody will only be made for compelling reasons.
Avoiding loyalty conflicts: Parents should not involve their children in their conflicts; a high tolerance for attachment is an important criterion for parenting ability.
Support and upbringing: The decisive factor is which parent can best support the child's development and offer them a stable, supportive environment.
Practical tips for parents going through a separation
Separate your relationship and parenting roles: Your conflicts as a couple should not interfere with your cooperation as parents.
Actively encourage contact with the other parent: speak respectfully about the other side and support contact—this is closely monitored by the courts.
Communicate objectively and document agreements: Focus on child-related facts; written communication helps to avoid misunderstandings.
Seek professional help early on: Legal advice and, if necessary, mediation can help to find solutions that are in the best interests of the child and avoid lengthy proceedings.
As a law firm in Vienna specializing in family and divorce law, we guide you through custody and visitation proceedings—as your divorce attorney in Vienna, we work with you to develop a strategy that consistently prioritizes your child’s well-being.
