Childhood law (Austria)
The Children's Law is a term from the Austrian family law and governs the relationship of a child to his parents , in particular maintenance and custody . The guiding principle of the law of children is the promotion of the best interests of the child , the interests of the parents or those of each individual parent are of secondary importance here.
- Note: Most of the statements made here refer generally to the legal guardian . Since the Austrian family law only provides for the grandparents or foster parents as guardians in the event of the death of the parents, it is also common in legal texts to only speak of "parents".
Parenting
Motherhood and fatherhood
In order to assign legal consequences to relationships under filing law, it is primarily necessary to determine who is the mother and father of the child (see Legal Parenthood )
As a rule, the motherhood of a child is certain ( Roman law : mater semper certa est ), whereas the determination of biological paternity was not or at least difficult to prove for a long time - pater incertus . Hence the legal proverb: pater est, quem nuptiae demonstrant . Today it is possible to establish paternity with a high degree of probability (~ 99.9 percent), but the assignment of motherhood has become less reliable thanks to the methods of reproductive medicine ( surrogacy , in vitro fertilization, etc.).
Rejection of motherhood
While child removal (without endangering intent) was unpunished until the Criminal Code 1975, the Criminal Code created a new criminal offense with Section 197 Leaving an Underage . Section 197 of the Criminal Code was repealed with Federal Law Gazette I 19/2001, putting children away is no longer punishable if the child is brought to a safe place (e.g. " baby flaps "). This innovation also enables mothers to give birth to their child anonymously in a hospital, which is already possible in some federal states. In February 2003, the European Court of Human Rights approved the possibility of anonymous birth in principle, since every state must be given the discretion to decide how to protect the child's right to know his or her origin and the rights of the mother and the adoptive parents to their protection Private life with each other. The French regulation at issue in the specific lawsuit was also aimed at the general interest in protecting the health of women and their children during childbirth. The opposite case, i.e. the unilateral rejection of paternity, does not exist.
Mutual legal claims
Support for children of parents (grandparents): Child support
The basis of child maintenance are §§ 231ff ABGB :
- Section 231ff (1) Parents shall contribute proportionally to the child's needs, which are appropriate to their living conditions, taking into account their abilities, skills, inclinations and development opportunities.
This requirement carries over to the grandparents ( § 231 ), as well as the heirs of the parents ( § 232 )
The guiding principle is generally the best interests of the child - the claims and needs of those liable for maintenance are viewed as inferior: In principle, the higher the income of the person liable for maintenance, the more maintenance has to be paid. The parent must make every effort to contribute to the child's maintenance as much as possible ( tension theory or tension principle ).
When it comes to the needs of the child, a distinction is made between standard needs (accommodation, food, clothing, lessons and upbringing, leisure activities, pocket money) and special needs (e.g. dental regulation, hospitalization, etc.).
The assessment of child support in money is only practically relevant where the child lives separated from the parents providing for it, be it due to a divorce or because the (adult) child z. B. attended a school (university) abroad. If the child lives with and with the parents, the following percentages are of lesser importance; Only pocket money is then paid out in cash . Otherwise, the maintenance services comprise kind ( Natural maintenance ), as well as the care maintenance .
Self-Sustaining Ability
Maintenance is only to be paid as far as the child cannot support itself. This (fictitious) self-preservation ability is independent of the fixed limit of age, it can occur before (apprentice) or after (after studies).
The court practice assumes a self-preservation ability with a monthly income of approx. 865 €. During military or community service , the child is in any case considered to be able to support itself. If a further education such as a university course begins afterwards , the maintenance claim may be revived so that the parents, if they are theoretically financially able to do so, also have to finance a university course. However, the prerequisite for this is that the student pursues this goal-oriented and with at least average academic success. A one-time change of study at the beginning of this study is tolerated by the court practice. For a doctoral program that is attached to a successfully completed degree , however, stricter standards (previous degree above average, etc.) must be applied.
In addition to income from wages , income from property income is also included here , e.g. B. Interest on assets that the child inherited or received as a gift . The asset base is primarily irrelevant.
Claim against parents
If the child is unable to support itself, it has maintenance claims against both parents. The law defines general principles according to which maintenance is to be measured, but court practice assumes percentages between 16 and 22% of the annual net income of each dependent parent, whereby for the exact calculation - within the 16-22% - the Child age is decisive.
In stark contrast to the maintenance of the spouses among themselves ( marriage law ), the maintenance of children (parenthood law ) is limited up to 2–2.5 times the standard requirement (“luxury limit”, “maintenance freeze” or “playboy limit”). This upper limit was withdrawn in order to avoid over-alimentation if the maintenance debtor is particularly capable. For educational reasons it is even to be refused to satisfy the child's luxury needs. As a rule for the average case, it can be said that, because of the important educational incentive to perform, it should be avoided to bring the maintenance payment closer to the self-sustaining income of a fully employed person.
| Age | percent | Standard requirement rate | Luxury limit | |
|---|---|---|---|---|
| up to 6 years | up to 3 years | 16% | 177.00 | 354.00 - 442,50 |
| 3 to 6 years | 226.00 | 452.00 - 565.00 | ||
| 6 to 10 years | 18% | 291.00 | 582.00 - 727.50 | |
| 10 to 15 years | 20% | 334.00 | 668.00 - 835,00 | |
| over 15 years | up to 19 years | 22% | 392.00 | 784.00 - 980.00 |
| up to 28 years | 492.00 | 984.00 -1230.00 | ||
| Deductions if there are several dependents | |
|---|---|
| for each additional child under 10 years | 1 % |
| for each additional child over 10 years | 2% |
| for the spouse depending on their own income | between 0 and 3% |
- Status: January 1, 2009 / July 1, 2008 - June 30, 2009
Calculation example: Dependent with 3 children, 10 years old, 8 years old and 5 years old. No further maintenance obligations.
| child | Age | Prints | Entertains | |
|---|---|---|---|---|
| 1 | 10 | 20% -1% -1% | 18% | |
| 2 | 8th | 18% -2% -1% | 15% | |
| 3 | 5 | 16% -2% -1% | 13% | |
| total | 46% | |||
In addition to the maintenance claim, there are also transfer payments at federal, state and municipal level, which are based on the main place of residence of the children and are to be paid (proportionally) to the children by the receiving parent.
Strain of child wealth
If neither the father nor the mother are able to provide maintenance, the base of the child's assets is to be used as a subsidiary. Overall, however, this must be reasonable for the child. In no way can the apartment, which the child due to z. B. Inheritance belongs and in which it lives are subject to an alienation. Proceed as follows here.
Claim against the grandparents
At the last level, all grandparents have to contribute proportionately "according to their abilities" to the child support (§ 232 ABGB), whereby there is no sequence of claims. Here, however, they have the “beneficium competentia”, so they only have to do enough - each - so that they do not endanger their own reasonable maintenance.
Maintenance for parents (grandparents) of children (grandchildren) - "wrong" maintenance
Conversely, if the children are able to support themselves, the above can also lead to the parents (or grandparents) running into financial difficulties and thus demanding maintenance from their children (grandchildren) ( Section 143 ABGB). This is possible in principle, but of course much stricter standards apply here than for the "normal" child maintenance against parents.
Trunk of fortune
The parents (grandparents) have to refer to the trunk of their property, as far as this is reasonable. As in the example above, however, the apartment in which there is an urgent need for housing does not have to be sold.
To direct claims primarily against spouses etc.
The parents (grandparents) have their claims primarily against their spouses or ancestors, the grandparents primarily against their children and only secondarily against their grandchildren.
Actual claim against the children (grandchildren)
Ultimately, the children (grandchildren) must, of course, have the ability to sustain themselves - but the children (grandchildren) have to provide maintenance to their parents (grandparents), whereby primarily the children and only secondarily the grandchildren can be brought up. In all of this, however, Section 182a (2) ABGB must be observed: If the parents (grandparents) previously neglected their maintenance obligations for the child who was under 14 years of age and who is now supposed to pay maintenance, the entitlement does not exist. This “retaliation” takes into account the idea that the maintenance claim against the children comes from the fact that the parents took care of them at the time. If they do not have that, they will not be entitled to maintenance later on either.
With regard to the amount of maintenance, it should be noted here that the person liable for maintenance only has to pay enough so that he does not endanger his own reasonable maintenance.
Custody
In addition to maintenance, custody is one of the central obligations in child law. Unlike the maintenance it ends definitively with coming of age of the child.
Parents have an obligation to maintain and promote the health of the child and to raise it . They are also responsible for representing the child with limited legal capacity as a minor, as well as managing his or her assets .
The Austrian school law also knows the concept of the legal guardian . The Ministry of Education wrote an opinion in 2005 to define this legally. It stated that in external relationships (e.g. with teachers) only guardians take the position of legal guardian and have a right to information. In the internal relationship with the child, however, parents who are not custodial or partners of the parents can exercise legal guardianship and help the child with homework, for example.
Custody of both parents
Since February 2013, the custody of both parents (which also existed before) can be determined by mutual consent of both unmarried parents at the registry office. If no agreement can be reached, joint custody can be brought about after calling the family court, even against the will of one of the parents. The old provision in § 166 ABGB, "The mother is solely entrusted with custody of the illegitimate child.", Was adopted by the Austrian Constitutional Court (G 114 / 11-12 of June 28, 2012). overturned as unconstitutional based on a decision by the European Court of Human Rights ( Zaunegger vs. Germany , dated December 3, 2009, complaint 22028/04) , and with the Childhood and Name Rights Amendment Act 2013 (KindNamRÄG, Federal Law Gazette I No. 15/2013 ) newly regulated.
Legal representation
The minor child is not yet fully legally competent . For this reason, in most cases it cannot and does not need to be legally effective. B. if he wants to buy a moped as a 16-year-old, the consent of the parents. Exceptions are according to the " pocket money paragraph " small business of daily life.
It should be noted here that in principle each parent can represent the child for himself ; so it is enough if z. B. the mother agrees - that the z. B. Father would have been against it is irrelevant after consent has already been given. In contrast to this, however, there are legal acts that require the consent of both parents (e.g. termination of an apprenticeship contract) or even approval of the guardianship court (e.g. when selling a piece of property that belongs to the child).
Management of assets
If the (minor) child has their own assets, the parents are responsible for managing them: They have to preserve the assets and, if possible, increase them.
Legal status of the child
Naming rights
The family name is acquired at birth. The illegitimate child receives the mother's family name (Section 165 ABGB) and her citizenship (Section 7 (3) StbG). - Children born in wedlock receive the common family name of the parents (§ 155 ABGB) - or now the name that the parents have agreed on, otherwise the name of the father - and become Austrian citizens at birth, if this is one of the parents or on the day of his or her Death (§ 7 Abs. 1 StbG).
Naming
The first name of the child is determined by the parents for legitimate children and by the mother for illegitimate children; so the legal guardians. The first name must not violate the best interests of the child and public order. The first name must correspond to the gender of the child: e.g. B. Rainer Maria R. (§ 21 Abs. 2 PStG).
A change of first name is not possible without further ado, but requires official approval, which is given for important reasons.
Legitimate children
Marital descent - presumption of marital status
For children born after the marriage and before divorce , annulment or annulment of the mother's marriage, the law establishes a presumption of marital status . It is assumed that the child (still) comes from the mother's husband. The same applies to children who are born before the 300th day after the death of the mother's husband ( Section 138 (1) ABGB ). Until KindRÄG 2001, the presumption of marital status also applied to children born within 302 days of the dissolution of marriage. This (legal) presumption can be refuted by proving the opposite: If the husband has reasons to assume that he is not the father, he can contest the marital relationship within one year of becoming aware of these circumstances, but at the earliest with the birth of the child ( Matrimonial disputes action ). Since the KindRÄG 2001, a later acknowledgment of paternity by another man breaks the presumption of marital status, provided that the mother designates the recognizing person as the father and the child (represented by the youth welfare agency) agrees. The man who was previously suspected to be a father can, however, object to such an acknowledgment. Likewise, in the opinion of the Supreme Court, the mother's husband - despite the existence of an effective acknowledgment - can still bring the marital disputes action.
Separation of parents
Guardianship in the event of separation
If the parents separate through divorce and show the court an agreement on the main place of residence of the children, joint custody applies. If there is no agreement or an agreement that does not promote the best interests of the child, the court has to decide who has sole custody. For this, the court must also take the child's will as a basis for decision-making; however, the child cannot actually decide.
Joint custody after the divorce can be revoked by a court at any time by one of the parents without the court being allowed to review this decision. The other parent then only has the right to claim a change of custody and to provide evidence that the child's wellbeing is at risk for the other parent, which often leads to highly conflictual proceedings.
Not every questionable act or tendency leads to a withdrawal of custody: for example, a one-time (!) Injury to the child through slaps in the face by the mother is usually not a reason to actually withdraw custody. Membership in a sect, too, since a decision by the ECHR - freedom of religion is a human right - cannot justify deprivation. Leaving the country is also no reason to withdraw custody.
Minimum rights
The parent who has not been assigned custody nevertheless has certain minimum rights:
- Right to personal intercourse : The person not entrusted with custody has the right to associate with the child, primarily based on the agreement and subsidiary on the order of the guardianship court.
- Information and expression rights : The person not entrusted with custody has the right to be informed about important matters affecting the child and to comment on them.
Although the right to information is provided for by law and can, for. B. Copies of certificates or photos of the children are sued in court, but in the event of a further refusal, applications for flexion punishment, which are to be seen independently of the legally established right to information, have always been with: "Violation of the information obligation is free of sanctions." rejected.
Illegitimate children
- Main article: Illegality
- As above under “legitimate children”, the mother is the woman who gave birth to the child.
- Father : The person who “attended” the mother between 300 and 180 days before the birth is assumed to be the father; however, the latter can prove the improbability of his paternity. If the court does not decide by judgment that this man is the father, he can still express his paternity by acknowledging paternity.
The following legal consequences are characteristic of illegitimate children:
Possible joint custody
Joint custody is possible and can be ordered by a court, both when living in a community as well as when the parents have different places of residence. An application from at least one parent to the responsible district court is required. In the past, joint custody could be terminated by one of the parents at any time without giving reasons and this was not accessible to a judicial review.
Childbirth costs
The father has to reimburse the childbirth costs, whereby it should be noted that these are usually covered by the health insurance with which the child's mother is insured. A maintenance obligation of the child's father towards the child's mother or a replacement for lost earnings is not provided.
Adopted children
- Main article: Adoption
Individuals or two people who are married together can adopt children, i.e. adopt children instead of children. However, this right is by no means reserved for childless individuals or parents - the adoptive's own biological children are not an obstacle. Even grandparents can adopt their grandchildren.
The adoption comes about through a contract between the adoptive child and the child of choice (or their legal representative), whereby it should be noted that the adoptive person must be 18 years older than the child of choice. Thus, the adoption of a "normal" childhood should be modeled. The elective father must be thirtieth and the elective mother twenty-eight years of age. If spouses adopt together or if the child of choice is a biological child of the spouse of the adopting person, then falling below this age limit is permissible if a relationship between the adopting child and the child of choice already exists that corresponds to the relationship between biological parents and children.
With regard to the approval of the adoption by the court, it should be noted that the concerns of biological children are also taken into account. The parents of the (minor) child of choice and the spouse of the adoptive child must be heard.
Legal effects
Adoption means that the child of choice is treated like a legitimate child. Relationships under family law between the child of choice and his / her biological parents are subordinate to the new family law relationship. In terms of inheritance law, the adoption has such an effect that the adopted child can inherit from the adoptive person (and vice versa), but otherwise has no inheritance relationship with relatives of the adoptive person. The child's right to compulsory portion vis-à-vis his biological parents remains.
Foster children
Foster children are in the custody of third parties because their birth parents (cannot) fulfill these obligations.
See also
- Visiting agent
- Compulsory parenting advice
- Family court assistance
- Children's rights
- Custody (international)
literature
- Konrad Schüch: The Austrian child law. ÖA 1980, 31 ff
Individual evidence
- ↑ Application no. 42326/98
- ↑ Edwin Gitschthaler: The tension theory in maintenance law - 20 years later . In: ÖJZ . 1996, p. 553 ff . ( Familienrecht.at [PDF; accessed on April 19, 2009]).
- ^ Günter Tews: Self-preservation ability. In: Internet platform Austrian Law, Familienrecht.at. Margreth Tews, accessed April 19, 2009 .
- ↑ Meinhard Purtscheller, Wolfgang Salzmann: Maintenance assessment: With special consideration of the current judicature of the Supreme Court . Manz, 1993, ISBN 978-3-214-06636-9 .
- ↑ a b child support. In: Citizens; Finance; Single parenting. HELP.gv.at , January 1, 2009, accessed April 19, 2009 .
- ↑ Günter Tews: Luxury limit, Playboy limit, maintenance freeze. In: Familienrecht.at. Retrieved September 24, 2009 .
- ↑ OGH (Ed.): Legal sentence RS0047424 . Vienna ( online [accessed December 13, 2015]).
- ↑ Standard requirement rates. In: Familienrecht.at. Retrieved April 19, 2009 .
- ↑ Provincial School Board for Upper Austria: Legal questions on the concept of legal guardians ( memento of the original from January 23, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. dated September 1, 2005, accessed January 22, 2015
- ↑ custody of both parents. help.gv.at .
- ^ Decision of the Constitutional Court of June 28, 2012 G 114 / 11-12 on the application of the Regional Court for Civil Law Matters Vienna of September 6, 2011, Z 48 R 207 / 11p (online, ris.bka ).
- ↑ custody of both parents. and Childhood and Name Rights Amendment Act 2013 - adopted changes. help.gv.at.
- ↑ EFSlg 93.123, LGZ Vienna July 12, 2000, 42 R 245 / 00s
- ↑ EFSlg 68.893, 89.848 u. a. (Collection of Marriage and Family Law)
- ↑ Help the separated children to their right to both parents and support the petition: Gemeinschaftobsorge.at. Shared-obsorge.at, accessed on August 9, 2011 .
- ↑ §180 ABGB
Web links
- Family and partnership. HELP.gv.at , accessed on February 19, 2018 .
- The new child law at a glance KindRÄG 2001. Rechtsinfo§ Online, accessed on April 19, 2009 .
