International Parental Child Abduction
Austria
April 2, 2002
DISCLAIMER: The information in this circular relating to the legal requirements of a specific foreign country is provided for general information only. Questions involving interpretation of specific foreign laws should be addressed to foreign legal counsel.
GENERAL INFORMATION: The Hague Convention on the Civil Aspects of International Child Abduction (the "Hague Convention") came into force between the United States and Austria on October 1, 1988. Therefore, Hague Convention provisions for return would apply to children abducted or retained after October 1, 1988. Parents and legal guardians of children taken to or retained in Austria prior to October 1, 1988 may still submit applications for access to the child under the Hague Convention in some cases. If you are considering filing an application under the Convention, please review the information provided below and then contact the officer in the Office of Children’s Issues who is responsible for handling cases of abduction to Austria. This officer can be reached at (202) 736-9090.
In accordance with the Hague Convention, courts in Convention countries are expected to return abducted children to the country of habitual residence, that is, to return the child to the appropriate jurisdiction for a decision about custody rights. There are several very specific exceptions to return under the Convention and these were intended to be interpreted very narrowly. The court is not expected to go into issues that deal in any way with custody rights, such as consideration of the best interests of the child. Under Austrian domestic law, however, the concept of the best interests of the child is of overriding importance. It is therefore possible that the influence of domestic law in these matters can cross over to influence international cases under the Convention, with the consequence that undue deference may be given to the perceived best interests of the child, rather than the intended precepts of the Convention.
When Austrian courts order the return of children under the Convention, the enforcement of such orders can be subject to a whole new set of lower court and appellate decisions that could render ineffectual the original return order. In questions of access, or visitation rights, under the Convention, we are not aware of any examples of court-ordered visitation rights being enforced in Austria if one parent objects to the order.
PLEASE NOTE: Submit your completed, signed application as soon as possible. Do not wait to get a custody order to begin the application process. A custody order issued after the taking or retention (a "chasing order") is not relevant to your Hague case and may, in fact, complicate it.
INSTRUCTIONS: To apply for assistance under the Hague Convention in Austria, you will need to submit the following:
1) The U.S. Central Authority application form. This form may be obtained from the Office of Children's Issues or downloaded from our web site (travel.state.gov). Please refer to pages 37 through 41 of the U.S. Central Authority's brochure International Parental Child Abduction for instructions on completing the application form.
2) Copies of the children's birth certificates, and of your marriage certificate and divorce decree, as appropriate.
3) A copy of either the custody order in effect when the child was taken to Austria or the state law that establishes your right to custody, and any agreements regarding custody or access. Note: It is not necessary to have sole custody to apply for assistance under the Hague Convention. If no custody order exists, and your state’s laws are silent as to a parent’s right of custody, an affidavit of law from an attorney in the U.S. may be acceptable.
4) Photos of the child and of the taking parent. These photos will not be returned to you.
5) Article 28 Authorization. You must sign this form in order for the Austrian Central Authority to have the legal authority to act on your behalf. A copy of this form can be obtained from the Office of Children’s Issues at the address below.
PLEASE REMEMBER:
- All documents should be typed or very clearly printed in black or blue ink as they may be faxed more than once.
- Fill out the Hague application as completely as possible with the information you possess. Of particular importance is your explanation of the circumstances leading up to and surrounding the child’s removal from the United States (Part IV on the application). In cases where the child has been gone for a few months or more, your statement - which can be done on a separate piece of paper - should be as detailed as possible regarding any actions you have taken to recover the child in the interim.
- If you are concerned that the taking parent will flee or hide the child when notified of the proceedings, it is very important that you note this and state the reason for this concern in Part VIII of the application or on a separate page. It is helpful if this concern is repeated in a cover letter or note attached to the application.
- There is no fee to file a Hague application.
LEGAL COUNSEL: You will require an attorney to file the Hague application with the Austrian court and to represent your interests in hearings on your application. When the case is assigned to the appropriate trial court, a lawyer is appointed by the court to represent you. The legal expenses are covered by the Austrian Government.
You are, of course, free to hire your own lawyer if you so choose. The U.S. Embassy in Vienna maintains a list of local attorneys for your reference. This list can be found on the Internet at http://www.usembassy-vienna.at/consulate/att.htm. Following is contact information for the Embassy:
American Embassy
Consular Section
Gartenbaupromenade 2,
4th Floor
A-1010 Vienna
Austria
Telephone: (43) (1) 313-39
Fax:(43)(1) 512-5835
TIME FRAME: The conclusion of the judicial process in Austria under the Hague Convention may take several months from the time of filing the application. It is also a possibility, based on the experience of the Department of State, that a case might not be resolved for several years, depending, for example, on appeals by the abducting parent regarding enforcement of court orders. It is important to remember that the Austrian legal system differs from that in the United States. Hague Convention matters are given priority by Austrian courts, but scheduling is still dependent on court availability. You should consult your Austrian attorney for an assessment of the procedure and anticipated delays in that country.
APPEALS: Hague applications may be appealed by either party, which may further delay enforcement of a decision. In Austria, the initial decision is made by a single judge in the local court (Bezirksgericht.) The appeal of first instance can be made to a panel of judges in the Regional court (Landesgericht.) The second and final appeal can be made to a panel of judges in the Supreme Court. As noted above, the abducting parent can make a new argument against the execution of any return order and this also can be appealed twice up to the Supreme Court.
CRIMINAL REMEDIES: For information on possible criminal remedies, please contact your local law enforcement authorities or the nearest office of the Federal Bureau of Investigation. Information is also available on the Internet at the web site of the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention at http://www.ojjdp.ncjrs.org. Please note that criminal charges may complicate a Hague Convention case. Contact the country officer in the Office of Children's Issues for specific information.
The completed Hague application with supporting documents should be submitted to:
By FEDEX, DHL, Express Mail, etc.
Office of Children's Issues
SA-29
U.S. Department of State
2201 C Street, NW
Washington, DC 20520-2818
Phone: (202) 736-9090
Fax: (202) 312-9743
By Regular Mail*
Office of Children's Issues
SA-29
U.S. Department of State
2201 C Street, NW
Washington, DC 20520-2818
(*As of February, 2002 the State Department is experiencing considerable delays of at least three to four weeks in the delivery of regular mail due to mandated irradiation against harmful substances. We strongly recommend that Hague application packages be sent by courier such as FEDEX, DHL, Express Mail, etc. to ensure prompt delivery.)
Tel: 1-888-407-4747 (Recorded Information, access to officers) or (202) 736-9090
Fax: (202) 312-9743
Internet: children's_issues.html
While most applicants submit their applications through the U.S. Central Authority in the Department of State’s Office of Children's Issues, you may submit your application directly with the Central Authority listed below. If filing directly, you must send of copy of your application and supporting documents to the U.S. Central Authority.
Austrian Central Authority
Bundesministerium fur Justiz
Abteilung I 10
Postfach 63
A 1016 Vienna
Austria
New Law on Passport Applications for Minors:On July 2, 2001, The Department of State began implementation of the new law (Section 236 of P.L. 106-113) regarding the passport applications of minor U.S. citizens under age 14. Under this new law, a person applying for a U.S. passport for a child under 14 must demonstrate that both parents consent to the issuance of a passport to the child or that the applying parent has sole authority to obtain the passport. This law covers passport applications made at domestic U.S. passport agencies in the United States and at U.S. consular offices abroad. Exceptions to this requirement may be made in special family circumstances or exigent circumstance necessitating the immediate travel of the child. The purpose of the new requirement that both parents’ consent be demonstrated is to lessen the possibility that a U.S. passport might be used in the course of an international parental child abduction.
Children’s Passport Issuance Alert Program (CPIAP):
Separate from the two-parent signature requirement for U.S. passport issuance, parents may also request that their children’s names be entered in the U.S. passport name-check system, also known as CPIAP. A parent or legal guardian can be notified by the Department of State’s Office of Children’s Issues before a passport is issued to his/her minor child. The parent, legal guardian or the court of competent jurisdiction must submit a written request for entry of a child’s name into the Passport Issuance Alert Program to the Office of Children’s Issues. The CPIAP also provides denial of passport issuance IF appropriate court orders are on file with the Office of Children’s Issues. Although this system can be used to alert a parent or court when an application for a U.S. passport has been executed on behalf of a minor, it cannot be used to track the use of a passport. If there is a possibility that your child has another nationality you may want to contact the appropriate embassy or consulate directly to inquire about the possibility of denial of that country’s passport. There is no requirement that foreign embassies adhere to U.S. regulations regarding issuance and denial of passports. For more information contact the office of Children’s Issues at 202-736-9090. General passport information is also available on the Office of Children’s Issues home page on the Internet at children’s_issues.html.
The State Department has general information about welfare/whereabouts visits, hiring a foreign attorney, service of process, enforcement of child support orders, and the international enforcement of judgments, which may supplement the country-specific information provided in this flier. In addition, the State Department publishes Consular Information Sheets for every country in the world, providing information such as location of the U.S. Embassy, health conditions, political situations, and crime reports. When situations in a country are sufficiently serious, the State Department issues Travel Warnings that recommend U.S. citizens avoid traveling to that country. These documents are available on the Internet at http://travel.state.gov or by calling the State Department’s Office of Overseas Citizen Services at (202) 647-5225. Many of these documents can also be obtained by automatic fax back by calling (202) 647-3000 from your fax machine.
