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Matthias Loinig

Family Law plan flaws need to be ironed out before it's too late

A conference on family law organized by the FAMZ (the interdisciplinary magazine for family law) took place at "Hotel Strudelhof" in Vienna this week.

Dr. Michael Stormann, head of the department for law of persons, family law and law of succession in the Ministry of Justice, as well as Prof. Dr. Astrid Deixler-Hübner presented the new family law, which becomes law in Austria in February next year.

Much is unclear but one thing is for sure: The new family law seems to not have been properly thought through and nobody knows what it will really mean. The new family law was brought in under pressure from a ruling at the Austrian Constitutional Court and now the question arises over who will be able to deal with the increasing volume of work it will mean.

It will mean many new and well informed family law judges will be needed; and yet the Austrian authorities should have taken precautions against this situation some years ago, when the ECHR held that Austrian family law would violate the European Convention of Human Rights. But in the end, MPs decided many other law reforms were much more important than our children’s welfare.

What does the law include in a closer look? With regard to the so called "cool-down-phase" of 6 months, which is supposed to smooth differences in contentious custody cases with the aid of interim arrangements, Dr. Stormann said: "Neither those who have to read this provision, nor I suspect those who wrote it, can understand it."

Further comments seem to be unnecessary.

At the same time joint custody is considerably devalued. As was always the case, it has to be specified where the child will have its residence if joint custody is granted. If the parents cannot agree on a residence, the question has to be settled in court.

If the habitual residence is determined by court, the parent with whom the child lives has the "right to determine the child’s residence". The chosen parent is according this right that means they are even entitled to move to a foreign country without the consent of the other parent.

This is a big change, because until now it was impossible to move to another country without the consent of the second parent if the parents had joint custody. And if one parent moved abroad without the other parent's consent that person could get his/her child back by invoking the Convention on the Civil Aspects of International Child Abduction.

As a result the new law seems if anything to worsen the situation for those involved, raising costs and complications - and bringing nothing of real advantage. If the very real problems it causes are to be avoided - an urgent rethink is needed - and needed now before it is too late.

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Austrian Times columnist Matthias Loinig is a legal correspondent and campaigner for more transparency and fairness in family law in Austria. One of the main areas he specialises in is the often obscure decisions by courts of custody - in particular over the tendency to favour the mother at the cost of the father. He is now a veteran campaigner with extensive experience of the justice system and works with a team of legal professionals recognised as the most experienced and skilled family law practitioners in Austria. He has worked towards resolutions for many parents and children, especially in cases where the parents have an immigration background, and is now a columnist for the Austrian Times Group.

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