Do parents have a right of personal contact if the minor child refuses?
Pursuant to Section 108 of the Austrian Non-Contentious Proceedings Act (Außerstreitgesetz, AußStrG), the application for the regulation of personal contacts is to be rejected without further examination of its content and the continuation of enforcement is to be refrained from if a minor who has already reached the age of 14 expressly refuses the exercise of personal contacts and an instruction about the legal situation and about the fact that the initiation or maintenance of contact with both parents basically serves his or her best interests as well as the attempt to reach an amicable settlement remain unsuccessful.
In a recent decision, the Austrian Supreme Court (Oberster Gerichtshof, OGH) had to deal with a case in which the child almost turned 14.
Facts of the case
The child, who is almost 14 years old, is being cared for by the father. The mother applies for a right of personal contacts. The child refuses contact with his mother. It is clear that the (current) rejectionist attitude toward contact with the mother was developed by the child himself and the child was not influenced by anyone. The refusing attitude is essentially due to previous changes in the mother’s behavior caused by her illness.
How did the Supreme Court decide?
As a result, the Supreme Court rejected the complaint of the mother, who was denied a right of personal contact to her almost 14-year-old son. The Supreme Court saw no need to correct the decisions of the two lower courts, each of which had taken the minor’s negative will into account in their decisions to deny the contact requested by the child’s mother.
Although the Supreme Court stated that Section 108 AußStrG is not applicable to a minor who is not yet 14 years old, the minor’s refusal of contact with the other parent must nevertheless be given some weight in assessing the extent to which the exercise of visitation rights must be allowed against the minor’s established will, because this can deepen and strengthen the child’s rejecting attitude.
The Supreme Court stated that the decision as to whether and to what extent a parent is granted a right of access is always a case-by-case decision. It is therefore not regularly a matter of legal questions of considerable importance, unless fundamental principles of case law have been violated or the best interests of the child have not been sufficiently taken into account. None of this was the case here. In its decision, the Supreme Court refers to earlier decisions in which it stated that the highest principle in the structuring of the right of personal contact is always the best interests of the child and that, in the event of conflict, the interest of the parent entitled to personal contact must take second place to the best interests of the child. Even if the will of the child alone is not the decisive criterion, it is nevertheless an important criterion and the older a child who is already capable of understanding is, the sooner the will of the child will have to be taken into account.
(Decision OGH 3 Ob 147/22x of 29.09.2022)
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