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child custody ruling (appeal)
This is the English version of the child custody appeal.
02/06/2024
Ruth Silbermayr
Author
Vienna, 23 January 2024
Appeal
In the matter described above, the children’s mother lodges an appeal against the decision of the district court, dated 8 January 2024, within the relevant deadline.
Appeal:
The contested decision is being contested in its entire content and scope.
The following grounds of appeal are asserted: Inadequate procedure, incorrect or incomplete determination of facts due to incorrect assessment of evidence and incorrect legal assessment.
I. Inadequate procedure:
The children’s mother sees a procedural misdemeanor particularly due to the circumstance that evidence was not evaluated in the present lawsuit.
Furthermore, there was a misrepresentation of facts.
The children’s mother has explained in detail and with good reason that she used to live in China with the father and their two children. They had always agreed that they would move to Austria from China by the time the older minor would be starting school. In 2019, she was supposed to prepare the move, which is why she had left China first in agreement with the children’s father.
The father then failed to comply with their agreement, has later moved with the minors within China and has refused to disclose their new place of residence.
It should be noted that in the past, before the mother had moved to Europe, the children’s mother was the most important caregiver of the minors. This close bond between the minors and their mother was created not least because the children’s mother was almost entirely responsible for the actual caretaking, supervision and custody of her children before she moved to Europe.
It is highly questionable whether the father of the children can exercise the care, custody and education of the minors to their benefit.
From the mother’s point of view, it would best serve her children’s well-being and the further healthy development of the minors if sole custody were transferred to the children’s mother. Unlike their father, the children’s mother would be willing to facilitate visitation and contacts between the children and their father.
Contrary to their agreement, the children’s father did not come to Austria with the minors, which is a fact; and has cut off contact between the mother and her children, moved with them and refused to disclose the minors’ new place of residence, in this order. The last time the mother had contact with her children was on 2 July 2020.
The children’s mother is a loving and caring mother who responds well to the needs of her sons and is able to provide them with security and orientation.
It is questionable whether the best interests of the children can be sufficiently protected by the children’s father in this situation. Under any circumstances, the children’s father should not be allowed to have joint custody.
The children’s father does not look after his children sufficiently and does not promote their healthy development.
The children’s father refuses to communicate with the children’s mother; she only receives cynical and dismissive answers from the children’s father – in those instances where she does receive an answer.
In addition, the children’s mother should have been granted a right of contact as requested by her by the court, in that she is entitled to have her children with her during the Chinese summer holidays and to otherwise have daily video calls with them.
The Vienna Child and Youth Welfare Services have also spoken out in favor of the children’s mother having a right of visitation during the holidays.
In the past, the children’s father has agreed to the children’s mother having video calls with the minors three times a week.
The court of first instance did not interview the children’s mother. However, this would have been necessary. The court of first instance violated its obligation to investigate the material truth. According to Section 182a of the Code of Civil Procedure, the court of first instance should have discussed the parties’ factual and legal arguments with both parties. It can be said that the court’s investigation of the facts was inadequate.
Finally, a psychological evaluation should have been ordered by the court to understand the actual wishes of the minors.
It is to be suspected that the minors are being strongly manipulated by the children’s father. The father has not shown in any circumstance that he is willing to cooperate with the children’s mother.
The father’s behavior shows clear, massive deficiencies in terms of acceptance and tolerance of the mother’s partaking in the upbringing of their two children.
The children’s mother, on the other hand, accepts the father’s partaking in the upbringing of their two children and does not speak badly about the children’s father in front of her children.
The mother understands that children need contact with both parents for their healthy development and the children’s mother does not only respect the relationship between her children and their father, but also encourages it.
The court of first instance completely ignored or did not take these circumstances into account before making its decision.
Because the court of first instance did not take these important aspects into account in its decision, there is a significant procedural misdemeanor, due to the fact that essential facts that support the mother’s arguments were not taken into account. The mother’s requests for taking into consideration the provided evidence were also either ignored or rejected through the use of incorrect arguments.
The procedural misdemeanors cited are important insofar as the court of first instance would have come to a different conclusion had it not avoided due process; furthermore, under these circumstances it would have been warranted that the children’s mother receives sole custody.
II. Incorrect or incomplete determination of facts due to incorrect assessment of evidence:
Based on the facts established, it turns out that the facts relevant for such a decision were not fully or correctly taken into consideration.
The children’s mother was no longer heard after her appearance in court on 11 July 2023.
The children’s father was also not interviewed with regards to her statement. As has been explained under point I., this is a violation of the formal duty to investigate the material truth. In the absence of additional questioning of the party and failure to obtain an additional expert opinion, the court of first instance should have found that transferring sole custody of the two minors to the children’s mother is justified in the present case. In addition, the children’s mother should have been granted a right of contact as requested by her in the sense that she is entitled to have her children with her during the Chinese summer holidays and to have daily video calls with them.
If the evidence had been properly assessed, the court of first instance would have had to conclude that the father of the children should not be allowed to have custody of the two minors. A similar finding is requested.
III. Incorrect legal assessment:
On base of the facts that have already been established, the legal assessment also turns out to be incorrect:
As has been explained in detail under point I., the additional questioning of the children’s mother and the obtaining of a psychological expert opinion would have shown that there is massive alienation and strong manipulation of the minors by the children’s father and that the children’s mother should have received sole custody; as well as that the contact rights requested by the mother are appropriate in the present case.
According to established case law, the decision on custody of children is based exclusively on what is in the best interest of a child. Because this regularly entails an interference with the right to respect for private and family life (Article 8 ECHR), a restriction of custody may only be a last resort and may only be ordered to the extent necessary to avert an imminent threat to the children’s wellbeing. The court may only make use of such a measure for serious reasons. The children’s welfare is at risk if the caretaking duty is not being fulfilled or is grossly neglected or if other interests of the children worthy of protection are seriously and specifically endangered, whereby objective non-fulfillment or neglect is sufficient. The evaluation must not only take into account the current situation, but also probable future outcomes.
The court of first instance deviated from these principles. In the present case, the court of first instance did not conduct a necessary future prognosis.
Neither has the children’s mother neglected her parenting duties, nor has she abused her parenting power, and she is also not incapable of fulfilling parental tasks. Before she moved to Austria, the minors had a very good relationship and close bond with their mother. The mother’s priority is the wellbeing of her children.
The children’s mother can recognize the signals her children give her and she can recognize her children’s needs and is able to respond to them quickly and appropriately. She is able to support the children in the best way possible.
It follows that there can be no question of a specific risk to the children’s welfare in the case of the children’s mother.
The children’s wellbeing is (only) at risk if the duty of care is not fulfilled or grossly neglected or if other interests of the children worthy of protection are seriously and specifically endangered.
The children’s mother is capable of raising her children and is able to fulfill her custodial duties. There is no concrete threat to the children’s well-being from the mother.
It is a fact that the children’s father does not encourage contact between the children and their mother, and even prevents this, he influences their children and neither accepts nor tolerates the mother’s sphere of custodial rights. The children’s father can therefore be accused of serious breaches of custodial duties, which in any case justify the removal of custody and the right of contact to her children requested by the children’s mother.
Due to all these reasons, the children’s mother submits the following requests to the Vienna Regional Court as the court of appeal:
- The mother’s appeal and the requests she submitted should be upheld in full; and alternatively
- the contested decision should be overturned, and the law case should be sent back to the first court to conduct a new hearing and come to a new decision.
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