Custody & guardianship

Learn what is meant by custody or guard ianship, how custody/custody is regulated , how to obtain sole custody, what happens when the custodian dies, how custody is regulated for a minor mother, and what to look for when traveling with a child.

What is meant by custody/custody?

As the custodian, you have the right and the duty to care for, educate and legally represent your minor child and to manage his or her assets.

If you have sole custody of a child or if the other custodian does not live in the same household as the child, you can claim child support from the non-custodial parent. This is independent of the right to visitation contacts.

What is meant by care and upbringing?

As the custodial parent, you are entitled and obligated to:

• to care for the physical, mental and emotional well-being of your child.
• To promote your child according to his or her abilities and inclinations, and
• to take into account the child's mental capacity for insight and judgment.

What is meant by asset management?

As the custodian, you are entitled and obligated to:

• to create a maintenance title for the child. The maintenance title determines who has to pay maintenance to whom and in what amount. This applies in particular to parents who live separately.
• to manage any assets to which your child is entitled (e.g. inheritance) in such a way that the value is maintained or increases.

What is meant by legal representation?

As guardian, you are entitled and obliged to represent your child in official and educational matters.(Name change, citizenship, school enrollment, apprenticeship contract, etc.)

How are custody rights regulated?

Custody is a legal term and is explained according to §§ 158-169 ABGB. You can distinguish between sole custody and joint custody.

Sole custody

In the case of illegitimate children, the mother is basically the sole custodian.

As the sole custodian, you have the right and the duty:

• To care for and raise your child, to manage their property, and to legally represent them,
• communicate essential information about your child to the non-custodial parent; and
• provide and support personal contact between your child and the non-custodial parent.

If marries the child's parents, the joint child becomes "legitimate." If the father has acknowledged paternity, both parents then have joint custody.

Joint custody

As parents with joint custody, you both have the same rights and the same obligations towards your child - even if you do not live in the same household.

Joint custody is granted to both parents in the case of children born in wedlock. If your child was born out of wedlock, but you and your partner want to share the same rights and duties towards your child, you can apply to the competent Service Unit Registry office and citizenship - Birth determine joint custody of both parents, or submit an agreement on joint custody to the guardianship court/district court responsible for the child. In addition, if you do not live in the same household as the other parent, you must establish a primary residence for your child.

If there is agreement, you can establish joint custody with an agreement at the district court, even if you do not live in the same household.

If there is no agreement, joint custody is usually not desirable. Nevertheless, joint custody can be applied for at the guardianship court/district court responsible for the child, which will then examine the situation and make a decision in the best interests of the child.

How do I obtain sole custody?

If you want to establish sole custody of your child in the event of a separation, you must apply for this at the guardianship court/district court responsible for the child. In the case of an amicable divorce, this can also be determined by agreement in court in the course of the divorce settlement.

What happens if the guardian dies?

In the event that both guardians die, custody must be transferred to another person by a decision of the competent guardianship court. Persons close to the child can submit applications for transfer of custody to the guardianship court/district court responsible for the child. Until the court decision has been made, the child has no legal guardian and is therefore not represented, particularly in external relationships (with authorities etc.). Custody is not automatically transferred to the child and youth welfare agency! However, it would be possible to transfer temporary custody to the person who comes into consideration as the legal guardian (§107 Para. 2 of the Austrian Foreign Proceedings Act). The child and youth welfare agency can also be entrusted with temporary custody until the proceedings are concluded.

If one of the two legal guardians dies in the case of joint custody, the surviving parent automatically receives sole custody.

How is custody regulated for a mother who is a minor?

If you as the mother are a minor and have given birth to a child, you as the child's mother are only responsible for the "care and upbringing" part of the relationship. This means that you take care of, supervise and raise the child in everyday life.

Since underage mothers do not have full legal capacity, you do not have the right and duty to manage the child's assets or to legally represent the child. The care and upbringing in the external relationship, the asset management and the legal representation in all sub-areas is the responsibility of the City Department Child and youth welfare . This includes the representation of the child externally, e.g. vis-à-vis authorities. Also with operations e.g. the agreement of the legal representative (thus the child and youth welfare service) is needed.

If persons of full age in your environment want to take over the legal representation in the external relationship as well as the asset management for the child, an application can be filed with the competent guardianship court/district court.

What is required if my child travels with the non-custodial parent?

In this case, the parent without custody needs a confirmation that the child may travel with the parent without custody. A written agreement between the parents is sufficient. The Federal Ministry of the Interior recommends filling out this power of attorney and carrying it with you. More information on this and the power of attorney in several languages can be found at Aliens Police and Border Control (bmi.gv.at).