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China Elevator Stories
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 challenged in its entirety.
The following grounds of appeal are asserted:
- Inadequate procedure
- Incorrect or incomplete determination of facts due to incorrect assessment of evidence
- Incorrect legal assessment
I. Inadequate procedure:
The children’s mother identifies procedural misconduct, particularly in the failure to evaluate evidence in the present case.
Furthermore, there was a misrepresentation of facts.
The children’s mother has detailed and substantiated that she lived in China with the father and their two children. They had always agreed to move to Austria from China by the time the older minor would start school. In 2019, she was supposed to prepare for the move, which is why she left China first, with the father’s agreement.
The father subsequently failed to comply with their agreement, later moved with the minors within China, and refused to disclose their new place of residence.
It should be noted that, before the mother moved to Europe, she was the primary caregiver for the minors. This close bond between the minors and their mother was established because she was almost entirely responsible for their care, supervision, and custody.
It is highly questionable whether the father can adequately care for, educate, and ensure the welfare of the minors.
From the mother’s perspective, transferring sole custody to her would best serve the children’s well-being and healthy development. Unlike the father, the mother is willing to facilitate visitation and contact between the children and their father.
Contrary to their agreement, the father did not come to Austria with the minors. He cut off contact between the mother and her children, moved with them, and refused to disclose their new place of residence. The last time the mother had contact with her children was on 2 July 2020.
The mother is a loving and caring parent who responds to her sons’ needs and provides them with security and guidance.
It is questionable whether the father can adequately protect the children’s best interests. Under any circumstances, the father should not be allowed joint custody.
The father does not sufficiently care for his children or promote their healthy development.
The father refuses to communicate with the mother. When he does respond, his replies are often cynical or dismissive.
Additionally, the court should have granted the mother contact rights, as requested, including visitation during the Chinese summer holidays and daily video calls.
The Vienna Child and Youth Welfare Services also supported the mother’s request for visitation during the holidays.
In the past, the father agreed to allow the mother video calls with the children three times a week.
The court of first instance did not interview the mother, which was necessary. This omission violated the court’s obligation to investigate the material truth. According to Section 182a of the Code of Civil Procedure, the court should have discussed the parties’ factual and legal arguments. The court’s investigation of the facts was inadequate.
A psychological evaluation should also have been ordered to ascertain the minors’ true wishes.
It is suspected that the minors are being strongly manipulated by their father, who has shown no willingness to cooperate with the mother.
The father’s behavior demonstrates a lack of acceptance and tolerance for the mother’s involvement in raising their children.
In contrast, the mother supports the father’s involvement and refrains from speaking negatively about him in front of the children. She understands the importance of both parents in their children’s lives and encourages their relationship with their father.
The court of first instance failed to consider these circumstances before making its decision.
Because the court ignored these critical factors, significant procedural misconduct occurred. Essential facts supporting the mother’s case were overlooked, and her evidence was dismissed or rejected using flawed reasoning.
These procedural errors are significant because they led to an incorrect conclusion. If due process had been followed, the mother would have been granted sole custody.
II. Incorrect or Incomplete Determination of Facts Due to Incorrect Assessment of Evidence
The facts relevant to the decision were not fully or correctly considered.
The mother was not heard after her court appearance on 11 July 2023.
The father was also not questioned regarding her statements, violating the formal duty to investigate the material truth.
Without further questioning or expert evaluation, the court should have concluded that transferring sole custody to the mother was justified. Additionally, the mother should have been granted contact rights, including visitation during the Chinese summer holidays and daily video calls.
Properly assessed evidence would have led the court to conclude that the father should not have custody. A similar finding is requested.
III. Incorrect legal assessment:
Based on the established facts, the legal assessment is also flawed.
As detailed in Section I, further questioning of the mother and a psychological expert opinion would have revealed significant alienation and manipulation of the minors by the father. The mother should have been granted sole custody and appropriate contact rights.
According to established case law, custody decisions must prioritize the child’s best interests. Any restriction on custody must be a last resort and justified by an imminent threat to the child’s well-being.
The court of first instance deviated from these principles.
The mother has not neglected her duties or abused her authority. Before moving to Austria, she had a strong, positive relationship with her children and prioritized their well-being.
The mother can recognize and respond appropriately to her children’s needs, supporting their development effectively.
There is no evidence of risk to the children’s welfare from the mother.
In contrast, the father prevents contact between the children and their mother, influences the children negatively, and does not respect the mother’s custodial rights. These actions constitute serious breaches of custodial duties, justifying the removal of his custody and granting the mother contact rights.
Due to all these reasons, the children’s mother submits the following requests to the Vienna Regional Court as the court of appeal:
- Uphold the mother’s appeal and her requests in full.
- Alternatively, overturn the contested decision and remand the case for a new hearing and decision.
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