6Ob230/12k, Oberster Gerichtshof

INCADAT legal file Hague parental abduction

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The case concerned a girl born in 2001. The child lived in Florida (USA), with her parents initially. After they divorced in 2006, the child remained there with her mother. The divorce judgment awarded shared custody to the parents, who had decided at that time that the child would reside with her mother apart from specifically-defined periods. The parents had also agreed that the child’s residence within the circuit of the court having tried the divorce might not change without both parents’ consent or prior judicial permission.
Starting in August 2008, the father lived solely in Berlin (Germany) and no longer travelled to the USA. In the summer of 2009 the child, who in the meantime had only had rare contacts with her father by telephone, went to Berlin for a month. She returned very disturbed. The child thereafter did not see her father until a meeting in April 2012, their contacts being limited to the telephone and Skype.
In the autumn of 2010, the mother proposed to move to Vienna (Austria) to live with her new partner. She applied to the Florida courts for permission to live there with her daughter, who agreed. The father objected. Nevertheless, the mother and child moved to Austria at Christmas 2010. On 27 December, they provided the father with their new address. In November 2011, the father applied for the child’s return either to Florida or to Berlin.
His return application was refused at first instance and on appeal. According to the appeal judgment, the father no longer had rights of access, and in addition, as he lived in Germany, his situation was comparable to one in which the parent from whom the child has been removed also moves to the State of refuge. In the present case, the child’s return was inconsistent with the 1980 Hague Child Abduction Convention. The father appealed to the Supreme Court.