Austria: Primary Care Dad Loses Custody to ‘Unemotional,’ ‘Unable to Cope’ Mom

November 19th, 2012 by Robert Franklin, Esq.
The determination of the state to deprive children of their fathers seems to recognize no geographical boundary.  It happens everywhere, and in this case, that determination by Austrian authorities has endangered not just the emotional well-being of a four year old girl, but also her life (Austrian Independent, 11/13/12).

Both parents in the case are deaf, but apparently Ines, the little girl in question, is a hearing child.  She was born in December, 2008 with an extremely serious congenital heart defect that requires medication and surgery to correct.  In October of 2009, her parents separated and from there until May of 2012, her father had virtually sole custody custody of her.  Ines’ mother was allowed to see her only once a month under supervision.  That of course means that the court had reason to believe that the child’s mother was in some way a danger and therefore could not be trusted alone with her.

Under that arrangement, Ines was cared for almost exclusively by her father during most of her life.  That included her many visits, exams, etc. with doctors in which the child’s paternal grandmother played a vital role – that of  sign-language interpreter.  Without her, the father and physicians would have been limited to communicating important medical concepts via written notes.

Despite her serious condition, Ines was thriving in her father’s care.

But in May of 2012, the girl’s mother decided, probably at the urging of her relatives, to seek a change in custody.  That was true despite the fact that there was no reason for such a change and many reasons to maintain the status quo.  Here, in addition to the father’s primary parenting role and the mother’s being limited to once-a-month supervised visitation, is some of the evidence against the mother:

In 2012 Ines’ mother filed for custody of her daughter despite having seen her for no longer than 5 hours and having had very little experience of caring for her or providing her with any of the necessary medical care.

Throughout the custody battle between Ines’ parents, several witnesses reported that it was clear her mother was unable to cope with Ines and her special needs. Also, a witness from the mother’s side said that in his opinion the father provided all the care for Ines whereas he felt there was an unemotional relationship between Ines and her mother. The father’s family has speculated that the only reason Ines’ mother applied for custody was because her family had pressured her into doing so.

When some witnesses testified that the mother was violent towards her child, her visitation rights as a mother had been restricted…

All of the child’s doctors – her cardiologist in particular – raised concerns that the child’s health could be at risk if she had to leave her familiar surroundings.

By contrast, here is the evidence in her favor:

An expert witness was then consulted in order to determine whether it would be in the best interest of the child to transfer custody from the father to the mother. The expert witness studied the contact between Ines and her mother for half an hour and came to the conclusion that the transferal of custody should be granted.

The expert witness acknowledged neither the child’s close relationship to her father nor the consequences that the transferal of custody may have on the critically ill child.
Neither the father nor the grandmother was included in the expert witness analysis, although the court file stated that they were the family members to whom the child related most closely.

Court Transferred Custody Against Advice of All Experts But One

That’s right.  The “expert” witness decided, on the basis of a single half-hour’s observation of the mother and child, that the mother should have custody.  He/she never interviewed the father or paternal grandmother and never acknowledged the close relationship between father and child, the fact of primary custody, the findings of domestic violence against the mother, the mother’s inability to cope with the child’s medical needs or the observations of the mother’s own witness who said her relationship with her daughter was distant and unemotional.

Given all that, the court transferred custody to the mother.

On 15 May 2012 the Executive Authority appeared in front of the father’s house, entered the property with the help of a locksmith and took Ines from her father.

In other words, they forced the door.

The court’s timing was remarkable.

Immediately after the child was removed, she was taken to the hospital near Linz where the pending heart operation then took place. Her father was not allowed to see his daughter during her stay in hospital.

Imagine a four year old child taken from her loving father with whom she’s spent virtually her entire life immediately before she goes into the hospital for major surgery.  As it turns out, a psychologist imagined that possibility and opposed it.

On 5 May 2012 the child’s psychologist alerted the Youth Welfare Office, as well as the court.

In regard to a further pending heart operation for Ines, the psychologist stated that it would be in the child’s best interest for her father, with whom she shared a strong connection, to be admitted to hospital with her. The psychologist feared that the child could otherwise suffer from anxiety, panic attacks, shiftlessness and developmental delay. However, the concerns of the psychologist did nothing to sway the decision of the court.

But the court’s assault on a defenseless child didn’t stop there.

Following her release from hospital, Ines was not allowed to go home to her father but had to move to different surroundings where she would be without him. The father was not allowed to see his daughter until 2 months later – their meeting was for one hour under supervision.

On 3 August 2012 the first court hearing took place. The judge made clear that the child’s father should be allowed access to his daughter for one hour per week under supervision in case he were to try to kidnap her. If he did not accept the judge’s offer he would have no right to visit his daughter.

In June 2012, the father requested that Ines underwent a psychological examination because of trauma which may have been caused by her removal from his care. In addition he applied for temporary custody as he felt that his daughter was in imminent danger and he also requested the right to unattended visitation, arguing that his lack of contact with his daughter was not in her best interest.

But the court, that’s been so attentive to the mother’s every wish, did nothing; for five months, it’s ignored the father’s motions completely.  In the meantime of course, he can’t see his daughter and she can’t see him.  That leaves one final outrage; it’s anyone’s guess whether the court will ever rule on the father’s motions.  That’s because the courts in that part of the country are undergoing restructuring.  The court in which this case is pending is scheduled to “close” at the end of January and there’s apparently no certainty about when – or if – the case will be taken up again.

It doesn’t get much more blatant than this.  As far as I can see, the mother had literally nothing to recommend her, and much to suggest that she’s an unfit parent.  The father, on the other hand, has for years attended lovingly and competently to his child’s every need.  And yet, on the “strength” of a single half-hour’s observation by a plainly biased “expert,” he’s torn from his daughter’s life.  I can only imagine the emotional trauma the little girl has been forced to endure.  Radically pro-mother bias is one thing; endangering a child’s life is something else altogether.

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