DISCLAIMER: The information in this flyer relating to the legal requirements of specific foreign countries 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, along with instructions for completing it, can be found on our website at www.travel.state.gov/childabduction.
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.
LEGAL COUNSEL: 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.at/en/embassy/cons/. Following is contact information for the Embassy:
Telephone: (43) (1) 313-39
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
(*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.)
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
PASSPORT APPLICATIONS FOR MINORS: A person applying for a U.S. passport for a child under 16 must demonstrate that both parents or legal guardians 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: 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 know as Children's Passport Issuance Alert Program (CPIAP). A parent or legal guardian can be notified by the Department of State before a passport is issued to his/her minor child.
ADDITIONAL INFORMATION: 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 Country Specific Information 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 www.travel.state.gov .