1Ob614/90 Oberster Gerichtshof

INCADAT legal file Hague parental abduction

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The child, a girl, was approximately 7 years old at the time of the allegedly wrongful removal. She had been living in Austria with her married parents since birth. On 16 January 1990 the mother took the child with her to the United States of America, leaving the father with only a letter of goodbye in which their future address was not mentioned.
On 29 March 1990 the father filed an application with the District Court of Linz for, among other things, determination of the child’s whereabouts and her return. He explicitly based his application on the 1980 Hague Convention. On 11 April 1990 the District Court of Linz dismissed his application on the grounds that the removal of the child to the United States was not wrongful as the mother had a right of custody – albeit joint.
On 22 May 1990 the Regional Court of Linz confirmed the decision of the judges at first instance. It considered that the right of custody referred to by the Convention includes any right of custody directly attributed by law and admitted that under Austrian law married parents have a joint right of custody of their children. The fact that decisions concerning the children must be taken jointly does not imply full agreement on the details but generally only agreement in principle as to the ways in which custody is exercised.
However, it was clear that the mother had ignored her husband’s right by taking the child to another continent. Violation of the father’s right of custody, however, did not result in full transfer of the custody of the child to him. Thus the child had been staying with a parent who had (joint) custody in a legal manner. Child abduction was by definition impossible between parents who have joint rights. To order the return would amount to violating the right of custody of the mother.
The father filed an appeal with the Supreme Court.