The new Childhood and Naming Law Amendment Act came into force on February 1, 2013. The law of parent and child as well as the law of names were restructured in key areas. It brings innovations in the areas of custody, contact rights (visiting rights) and naming rights, among others. On the one hand, the legislator merely implemented existing case law in these areas, while on the other hand, innovations were made that may not be feasible in practice, or only with difficulty.
1. custody
a.) Custody of illegitimate children
If the mother is not married at the time of the child’s birth, she will continue to have sole custody of the child.
b.) Custody of illegitimate children – agreement between the parents
However, unmarried parents can now determine joint custody by making a declaration to the civil registrar in person and in the presence of each other. However, if the parents do not live in the same household, it must be determined who will primarily care for the child. This agreement can be revoked by either parent within 8 weeks without giving reasons. This means that hasty decisions can be corrected. Such an agreement previously had to be made in court.
c.) Custody after divorce or separation-no agreement between the parents
If the parents cannot agree on the issue of custody after a divorce or separation, the court decides. The court therefore orders a “phase of provisional parental responsibility” (“cooling-off phase”) in disputed custody cases. It does not matter whether the children are legitimate or illegitimate. In concrete terms, this means that a court must arrange a provisional arrangement for 6 months. During these 6 months, the previous custody arrangement remains in place, but the details of contact rights (visiting rights), the care and upbringing of the child and the maintenance payments for the phase must be regulated in the same way (either agreed between the parents or – in the event of disagreement – determined by the court). If a “cooling-off period” is contrary to the best interests of the child, for example because violence is involved, then it may not be ordered by the court. The court must then immediately decide on the question of custody. During these 6 months of the “cooling-off period”, the child lives with one parent, although the other parent must be granted contact times (visiting times). However, this parent must also be allowed to care for and raise the child.
d.) Decision by the court
At the end of the 6-month trial period, the court makes a final decision on the question of custody. If one parent wants sole custody, the judge can, as before, award custody to one of the parents. What is new here, however, is that the court can also award custody to both parents if it is not contrary to the best interests of the child and the phase has shown that it can work.
The period of 6 months can also be extended by the court if necessary.
e.) Right to apply for custody for unmarried fathers-no agreement between the parents
The most important change here concerns the custody of unmarried fathers. In future, they will have the right to apply for custody. The unmarried father can therefore apply to the court for joint or sole custody (even against the will of the mother). The decision then lies with the court. In this case too, the court must order a “cooling-off period” in accordance with the best interests of the child, i.e. find a temporary solution for 6 months. The previous custody arrangement remains in place for the time being (the mother therefore remains solely responsible for custody during this time). After this “cooling-off period” of 6 months, the court can entrust one parent with sole custody. However, it is also possible to entrust both parents with joint custody if this is in the best interests of the child.
2. right of contact
a.) Contact of the child with the parents
The term “visiting rights” is no longer used and has been replaced by the term “contact rights”. In many cases, visiting rights were seen as meaning that the parent with care was only allowed to take part in leisure activities with the child. However, it was already a fact that this parent still had to participate in the care and upbringing of the child (including in school matters). The right of contact has been expanded and strengthened and the needs of the child have been given greater consideration. The so-called “visiting mediator” is also new. The task of a “visiting mediator” is to improve the enforcement of contact rights (visiting rights). They are supposed to mediate in conflicts between parents and monitor the proper handover and return of the child. This is now explicitly stated in § 187 ABGB.
“The regulation of the right of contact must ensure the initiation and preservation of the special close relationship between parents and child and should, as far as possible, include both times of leisure and care in the child’s everyday life.
If both parents have joint custody (or one parent has custody in certain areas), the parent who does not have primary care of the child is obliged to look after the child outside of the agreed or fixed times if the parent who has primary care is unable to do so. Furthermore, the child can now have its right to personal contact with the separated parent regulated and enforced by the court, even against the parent’s will.
b.) Contact of the child with third parties
Contact with third parties (siblings, step-parents or foster parents or other persons who have or have had a special personal or family relationship with the child) must be established if this is in the best interests of the child. As part of the amendment to the law, these persons are granted the right to apply and thus party status in the proceedings.
3. naming rights
Double names are now possible for both spouses and children. From February 1, 2013, a child can therefore have the mother’s double name, the joint family name or the new family double name. A child born out of wedlock can therefore also have a double name made up of the parents’ surnames. The child can also have a double name formed from the parents’ surnames. However, the length of the name is limited to two parts. In future, name declarations must be made at the registry office.
The surname is determined by the parent who is entrusted with the care and upbringing of the child. If both parents have custody of the child, they must decide by mutual agreement which name the child should bear in future. If no surname is chosen, the child will have the mother’s surname. If one spouse already has a double name, only part of this double name can be used for the future joint family name. However, the surname may not consist of more than two names.