Joint Custody after Divorce: Austrian Experiences

Our third Policy Brief illustrates the main findings of a professions analysis carried out by Renate Kränzl-Nagl from the European Centre and Christa Pelikan from the Institute for the Sociology of Law and Criminology.

This analysis was part of the “Evaluation Study on the Effects of the Implementation of the Children's Rights Amendment Act 2001, with Particular Reference to Joint Custody after Divorce” (commissioned by the Austrian Federal Ministry of Justice). The possibility of joint custody has been introduced in the frame of the Children’s Rights Amendment Act 2001 (hereafter called CRAA 2001). Five years after the introduction of the CRAA 2001, this evaluation has been carried out in order to get a deeper insight on how this newly introduced legal regulations have been put into practice.

It was the primary objective of this study to gauge the professionals’ perceptions of and experience with the Children’s Rights Amendment Act 2001, with particular reference to joint custody after divorce. It was, therefore, the purpose of the professions analysis to reflect the “view from outside” of the effectiveness of the tools introduced by the Children’s Rights Amendment Act 2001, i.e. the view of those who enforce or deal with the CRAA 2001 in their professional lives, as opposed to the “view from inside”, i.e. the reality of divorced couples and their children. A substantiated analysis of the views and experience of various professional groups contributes to making the public and often controversial debate on joint custody after divorce more matter-of-fact.

Estimations made by professionals lead to the conclusion that currently, at least 50% of the parents want joint custody in Austria. This result, which was confirmed in the survey of parents points to the fact that joint custody has become “normal” and has achieved equal status with sole custody. Furthermore, the professions analysis and the interviews with the judges lead to the conclusion that the durability of joint custody is a decisive factor for both parents. The number of those who want to change joint custody is small, smaller than many of the judges thought it would be: in 2004, the judges found that between 5 and 10 parents sought to put an end to joint custody. This figure is only slightly smaller than the number of those parents seeking to transfer the sole custody right from one parent to the other. However, it must be taken into account that the latter is a rather dramatic step and mostly the outcome of an escalating fight about visiting rights.

It can be seen that the representatives of the professional groups, in particular judges, believed that joint custody stood the test rather well. But it was not always viable. It seems that parents lacking the prerequisites for a certain cooperation with and mutual acceptance of the other parent, and mostly the parents with whom the children live, slowly come to seek sole custody.

The Policy Brief is downloadable at http://www.euro.centre.org/detail.php?xml_id=804