What happened?
The parents separated before the birth of their child in 2024. The child lives with the mother, who has sole custody. Since birth, the father had five short, supervised visits with the child, arranged through a parent-child counsellor proposed by the mother. Further visits failed to occur after the mother later became distrustful of this counsellor and generally opposed any contact. The relationship between the parents is highly strained, and communication is minimal.
The court of first instance therefore ordered a temporary weekly contact arrangement at a supervised visitation centre (“Besuchscafé”): initially 30 minutes (two sessions), then 40 minutes (two sessions), and thereafter 60 minutes per week (at the time, the child was five months old). On appeal, the mother expressed her general agreement with weekly 30-minute visits, gradually increasing in duration, but wanted the extensions to be dependent on the positive development of the visits. However, the appellate court rejected her appeal for lack of legal standing (no grievance) and upheld the remainder of the decision. It did not permit an ordinary appeal. The mother then lodged an extraordinary appeal (außerordentlicher Revisionsrekurs) with the Supreme Court (OGH).
How did the Supreme Court rule?
The OGH dismissed the mother’s extraordinary appeal due to the absence of a significant legal question (§ 62 para 1 AußStrG).
Firstly, the Court found that the mother had no legal grievance regarding the 30-minute weekly visits because she had expressly agreed to this arrangement during the proceedings and merely wished for extensions to be contingent on a positive outcome. According to established case law, a party who agrees to or requests a decision is not considered aggrieved — accordingly, her legal remedy was inadmissible on this point, and the question of whether the conditions for an extraordinary appeal were met did not need to be examined.
With regard to the further extensions of contact time (to 40 and 60 minutes), the OGH emphasised that the structure of contact rights must always be assessed on a case-by-case basis, in accordance with the child’s best interests. As long as the established legal guidelines are followed, such matters generally do not raise significant legal questions. For young children, frequent but relatively short visits are generally preferable. These principles apply not only from the second year of life onward but already in the first year, because the contact rights of both child and parents are protected under Article 8 of the ECHR, and § 187 para 1 ABGB explicitly requires the fostering of a close personal relationship.
The OGH reaffirmed that stable, reliable contact with both parents is generally in the best interest of the child and serves to prevent alienation. The lower courts had taken into account the child’s age, the father’s loving and gentle approach, and the absence of any circumstances endangering the child’s welfare. On this basis, they concluded that an early and stable bond with the father should be fostered through regular weekly, initially supervised visits. The gradual extension of contact to ultimately one hour per week fell within the lower courts’ margin of discretion. The mother’s concerns were adequately addressed through supervised visitation and ongoing evaluations.
As there was no correctable legal error either in the assessment of the mother’s legal grievance or in the substantive review of the child’s welfare, the extraordinary appeal was dismissed.
(Decision 3 Ob 91/25s of 24.09.2025)
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