Custody covers the care and upbringing of a child, the management of the child’s property and the child’s legal representation. In Austria, joint custody by both parents is the norm, and it continues after a separation. Under § 187 of the Austrian Civil Code (ABGB), the right of contact (formerly known as visiting rights) is primarily the child’s right to contact with both parents. Every decision is measured against the best interests of the child (§ 138 ABGB).
When parents go their separate ways, the child remains at the centre
A separation changes a great deal – but there is one thing it does not change: a child is still entitled to both parents. In the early period after a separation in particular, questions about custody and contact often come with worry, hurt and uncertainty. That is understandable. All the more reason to resolve these questions calmly and objectively, rather than letting them become a battleground for the parents’ conflicts.
On this page, we explain in plain terms what custody and the right of contact mean in Austria, why joint custody is the statutory default, how contact can be arranged and what happens if you cannot agree. One yardstick is always at the centre: the best interests of the child.
Custody – what does it involve?
Custody covers more than the question of where a child lives. It includes the care and upbringing of the child, the management of the child’s property and the child’s legal representation – for example before public authorities, in school matters or in healthcare. Anyone who has custody has a say in the key decisions in the child’s life.
Every decision on custody is measured against the best interests of the child (§ 138 ABGB). The law lists a number of factors for this: reliable care and encouragement, a sense of security, stable relationships, protection from harm and – as the child grows older – taking the child’s wishes into account. The deciding factor is not what the parents want or claim, but what is best for the child.
Joint custody as the norm, sole custody only as a last resort
In Austria, joint custody by both parents is the statutory default. In principle, it continues after a divorce or separation – the parents’ relationship with each other ends, but their shared responsibility for the child does not. Where joint custody continues, one question still has to be settled: in which parent’s household the child will mainly be cared for. That parent manages day-to-day life, while both parents take the key decisions together.
Sole custody for one parent is only an option as a last resort – when joint custody is not in the child’s best interests. This may be the case, for example, if the parents are permanently unable to communicate with each other or if one parent puts the child at risk. Sole custody is therefore neither a reward in a parental conflict nor a means of applying pressure. It is the exception for cases in which the joint model harms the child.
Right of contact – a fundamental right of the child
The right of contact (§ 187 ABGB) is primarily the child’s right to personal contact with both parents – and not merely an entitlement of the parent who does not live in the same household. This perspective is crucial: it is not about what the parents ‘get’ from each other, but about the child being able to maintain the relationship with both parents.
Ideally, you can agree between you how contact will work in practice – weekends, school holidays, public holidays, everyday contact. If that is not possible, the court can set the arrangements for contact. People close to the child outside the immediate family, such as grandparents, may also have a right of contact under certain conditions, if this serves the child’s best interests.
Double residence
Under the double residence model, the child spends roughly equal time with each parent and in practice has two equal homes. This model can be in the child’s best interests, but it requires a good deal: a workable basis for communication between the parents, homes close to each other, an everyday routine organised around the child’s needs, and a child old enough to cope with constantly moving between the two.
Double residence is not automatic and does not suit every family. Where the conflict between the parents is intense, constantly moving back and forth can put additional strain on the child. Whether the model makes sense in a particular case depends on the specific circumstances – and, like everything in this area, it is measured against the best interests of the child.
What to do in a dispute or if the child’s well-being is at risk
Not every conflict can be resolved at the kitchen table. If parents cannot agree on custody or contact, the proceedings often start with conciliation and counselling services, such as mediation or parenting counselling. The aim is to find a solution that keeps the child out of the conflict as far as possible. Only if that fails does the court decide.
How the proceedings work, costs and duration – an honest assessment
Disputes over custody and contact are dealt with in non-contentious proceedings at the district court with jurisdiction, which handles family law matters. Proceedings usually begin with an application and an attempt to find an agreed solution. The court can call in Family Court Assistance, obtain statements and hear the child in a way that suits the child’s age. The aim of the proceedings is an arrangement that serves the child’s best interests – not a ‘victory’ for one parent.
On costs and duration, honesty is called for: a reliable blanket answer is not possible. An agreed arrangement is generally much quicker and less expensive than contested proceedings, which can drag on for many months – for example where expert reports are needed or the facts are disputed. In addition to the lawyer’s fees, there may be court fees and the costs of court-appointed experts.
How we help you
We support you calmly and work to de-escalate – with the clear aim of finding a solution that keeps your child out of the conflict as far as possible. We explain clearly what joint custody, sole custody and the right of contact mean, check which model suits your situation and, where necessary, represent you in court. We make no promises about any particular outcome. But we do promise that the best interests of the child are not just a slogan for us, but the yardstick for every recommendation we make.
Contact: Teamanwälte, Mag. Johannes Bügler · Baumgartenstraße 82, 1140 Vienna · Phone +43 1 419 13 18 · office@teamanwaelte.at. Arrange an initial consultation, where we will take the time to discuss your situation.
This page is part of our Family law & divorce section. Related topics: calculating maintenance and divorce by mutual consent.
Please note: This page provides general information and is not legal advice on any individual case. What we say about custody, contact, procedure, costs and duration is general guidance and may turn out differently in an individual case. We give no guarantee of success. For a binding assessment of your individual situation – in particular if there are signs that your child’s well-being is at risk – please arrange a personal consultation.