Cross-border custody disputes in the EU
In principle, if parents live in different States, the courts of the State in which the child usually lives ('habitual residence') rule on parental responsibility or custody.
Court judgments delivered in an EU Member State are recognised in all other EU Member States without any procedure being necessary (one exception to this is Denmark). However, enforcement requires a separate procedure (exequatur procedure). In Austria, foreign judgments on custody arrangements can only be enforced if they have been declared enforceable by an Austrian court. The same applies to court settlements and enforceable authentic instruments.
An Austrian court can refuse to issue a declaration of enforceability if
- it is manifestly contrary to public policy (having regard to the best interests of the child);
- the defendant was not granted the right to a hearing in the State of origin; this does not apply if he or she manifestly agrees with the decision;
- the child was not granted the right to be heard;
- the decision is incompatible with a subsequent Austrian or foreign custody decision that satisfies the conditions necessary for a declaration of enforceability in Austria.
Furthermore, the declaration of enforceability must be refused at the request of the person entitled to custody if that person did not have an opportunity to participate in the proceedings in the State of origin.
The competent court in Austria for disputes concerning parental responsibility or the procedure for a declaration of enforceability is the district court
- in whose area of jurisdiction the minor has his or her habitual residence,
- or, if that is not in Austria, the district court in whose area of jurisdiction the minor has his or her (simple/actual) residence,
- or, if that is not in Austria, the district court in whose area of jurisdiction the legal representative has her or his habitual residence,
- or, if that is not in Austria, the district court in whose area of jurisdiction one of the parents has her or his habitual residence,
- or, in all other cases, the Inner City of Vienna District Court.
Habitual residence differs from simple residence of a certain duration and permanence (approximately six months).
As soon as Austrian courts have jurisdiction under the Brussels IIa Regulation or the 1996 Hague Convention on the Protection of Children, they primarily apply Austrian law.
Applications for non-recognition of a custody decision given in another EU Member State also fall within the jurisdiction of the district court in whose area of jurisdiction the minor has his or her habitual residence. In the absence of a place of habitual residence, the above rules of jurisdiction apply.
Responsible for the content: Federal Ministry of Justice