What happened?
Due to her disapproving attitude towards COVID-19 measures at schools, the mother with joint custody, in whose household the child also lives, enrolls the common child in home schooling, but without offering an adequate substitute for school attendance. The father, who considers continued school attendance and compliance with the relevant measures to be necessary, then applied for the mother’s custody rights to be revoked in the sub-areas of school and medical care, according to which these areas are to be the exclusive responsibility of the child’s father.
The court of first instance granted the father’s application. The court of appeal confirmed this decision.
Against the decision of the Court of Appeal, the mother filed an extraordinary appeal to the Supreme Court (Oberster Gerichtshof, OGH).
What did the Supreme Court decide?
The Supreme Court stated that the refusal of school attendance can be considered a threat to the best interests of the child and that a transfer of custody in the aforementioned areas to the parent who is in favor of continued school attendance is justified.
The assessment of the lower courts that the father’s decision-making authority in the areas of school attendance and medical care is more in the best interests of the child than that of the mother is therefore justifiable in the view of the Supreme Court and thus does not constitute an error of judgment that should be overturned by the Supreme Court.
The extraordinary appeal was therefore dismissed.
(Decision OGH 4 Ob 222/21g of 23.02.2022)
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