8Ob121/03g, Oberster Gerichtshof

INCADAT legal file Hague parental abduction

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The child, a boy, and his parents, had Serbian nationality. The parents were divorced in Belgrade on 9 March 2000, and the mother obtained custody of the child. After the divorce, the child had lived either with his mother in Austria, or with his maternal grandparents in Serbia. From October to December 2000, the father (who was waiting for an Austrian visa) also lived with the maternal grandparents with the child. From the end of December 2000 until May 2001, the child lived with his mother in Austria. During this period the mother regularly took the child to stay with his father.
After a contact period, at the end of May 2001, the father refused to return the child to his mother, relying on a Serbian decision granting him provisional custody of the child. The child therefore lived with his father in Belgrade until the beginning of the year 2002, from which date the father and the child lived in Austria. The parents then shared the care of the child, who spent one week with one and one week with the other.
In July 2002, saying that he was taking the child on holiday, the father placed the child with the maternal grandparents in Serbia. He told them that he was leaving the child with them until he found work and lodging in Belgrade. As soon as she heard the news, on 6 or 7 August 2002, the mother took the child back to Austria. On 2 September 2002, the Serbian Central Authority sent a request for the return of the child to the Austrian Central Authority.
A Serbian decision of 31 January 2002 had given custody of the child to the father; a Serbian decision of 6 March 2003 suspended the previous decision and awarded custody to the mother. The father appealed this decision. On 7 March 2003 another Serbian Court, analysing the move of 7 August 2002, convicted the mother on criminal charges for wrongful abduction of the child.
On 9 July 2003, the Bezirksgericht (district court) of Floridsdorf (Austria) refused to order the return, considering that when the mother removed the child, the father was not effectively exercising custody inasmuch as he had given the child to its maternal grandparents indefinitely; the Court also relied on the fact that, since the removal, the child had adapted well into its new surroundings. The father lodged an appeal.
On 1 September 2003, the Landesgericht f?r Zivilrechtssachen (Civil Court) of Vienna upheld the decision of the District Court. Not only was the father not effectively exercising custody at the time of the removal, but the child, who had already spent some time in Austria, would be put into an intolerable situation within the meaning of Article 13 paragraph 1 (b) if he was to be returned to Serbia, especially since the custody, which had at one time been granted to the father by the Serbian Authorities, had in the meantime once again been granted to the mother. The father lodged an appeal before the Austrian Oberster Gerichtshof (Supreme Court).