Do Abusive Parents Deserve To Be Forgiven?
Of the rights between parents and children1
General rights and obligations2
When children are born, a new legal relationship arises; This establishes rights and obligations between parents and children.
§ 1364 1) The parents of a child are understood to be the mother and the father. 2) Mother is the woman who gave birth to the child. 3) The following apply to legitimate and illegitimate paternity
more detailed refutable legal presumptions.
1) The parents are responsible for the upbringing of their underage children and generally promote their well-being.
2) Parents and children have to stand by one another, the children show respect for their parents.
3) The rights and duties of the father and mother are the same, unless otherwise specified in this main part.
1) Third parties may only intervene in parental rights to the extent that they are permitted to do so by the parents themselves, directly on the basis of the law or by an official order.
2) Unless otherwise stipulated below, the court may, at the request of one parent or the child concerned, replace the refusal of the consent of the other parent, possibly even both parents, with approval if it is a legal act, measure or order acts, the performance of which is urgently required in the interests of the child's best interests and does not unreasonably harm the well-considered interests of the parents, unless they consented.
§ 1381 2
Presumption of marital status
1) If a child is born after the marriage and before the end of the 302nd day after the judicial divorce, separation or annulment of the marriage of its mother, it is assumed that it is legitimate. This presumption can only be rebutted by a court decision that determines that the child is not descended from the mother's husband.
2) If the presumption of paragraph 1 also applies to a man with whom the mother has entered into another marriage after entering into, judicial divorce or separation or annulment of her marriage, it only applies to this man. If the parentage of the child in this regard is successfully disputed, the presumption applies when the decision becomes final for the first husband; At the earliest at this point in time, the period for contesting marital status begins.
Legal relationships between parents and legitimate children3
The legitimate child receives the common family name of the parents. If the family names of the father and mother do not match, the child receives the last common family name of the parents, provided that one parent still has it at the time of the child's birth, otherwise or in the absence of an earlier common family name, the family name of the father.
General Civil Code (ABGB)
1) The parents have to contribute proportionally to cover the needs of the child appropriate to their living conditions, taking into account their abilities, abilities, inclinations and development possibilities according to their abilities.
2) The parent who runs the household in which he looks after the child makes his contribution. In addition, he has to contribute to the maintenance of the child if the other parent is unable to fully cover the needs of the child or has to do more than would be appropriate for his own living conditions.
3) The entitlement to maintenance is reduced to the extent that the child has its own income or is able to support itself, taking into account its living conditions.
If the parents are unable to provide the maintenance to the best of their ability, the grandparents owe it according to the needs of the child appropriate to the living conditions of the parents. Otherwise, Section 140 applies accordingly; The maintenance claim of a grandson is also reduced to the extent that it is reasonable for him to use the tribal assets. In addition, a grandparent only has to pay maintenance insofar as this does not endanger his or her own reasonable maintenance, taking into account his other duties of care.
A parent's debt for maintaining the child passes to the heirs up to the value of the estate. Everything that the child receives after the testator through a contractual or will, as a legal inheritance, as a compulsory portion or through a public or private law benefit must be included in the child's entitlement. If the value of the estate is insufficient,
In order to secure the maintenance owed for the child until the probable occurrence of self-preservation, the child's entitlement is reduced accordingly.
1) The child owes his parents and grandparents maintenance, taking into account his living conditions, insofar as the dependent is unable to support himself and provided he has not grossly neglected his maintenance obligation towards the child.
2) The maintenance obligation of the children is subordinate to that of a spouse, a previous spouse, ancestors and descendants of a closer degree of the dependent in the rank. Several children have to pay the maintenance proportionally according to their abilities.
3) The maintenance claim of a parent or grandparent is reduced to the extent that it is reasonable for him to use the tribe's own assets. In addition, a child only has to provide maintenance insofar as it does not endanger its own reasonable maintenance if its other duties of care are taken into account.
The parents have to look after and bring up the minor child, manage their property and represent them; they should act in concert when exercising these rights and fulfilling these obligations. In the absence of agreement, the parent who runs the household in which the child is cared for is primarily entitled and obliged to care for the child.
General Civil Code (ABGB)
1) If one of the parents who took custody of the child together with the other parent died, a trustee was appointed for him in accordance with Section 269, Paragraph 3, Clauses 2 and 3, his whereabouts have been unknown for at least six months if the connection with him cannot be established or only with disproportionately great difficulty, or if he is completely or partially withdrawn from custody, the other parent alone is responsible for this. If the parent, who has sole custody, is affected in this way, the court must decide, taking into account the best interests of the child, whether custody should be wholly or partially assigned to the other parent or whether and which grandparents (grandparents) it should be; the latter also applies if both parents are affected. The regulations on custody then apply to this grandparent couple (this grandparent).1
2) At the request of the parent to whom the care and upbringing have been wholly or partly transferred, the court shall determine this transfer.2
As long as one of the parents has not come of age or has not been declared of age (Section 12 PGR), he or she does not have the right and duty to manage the child's assets and to represent the child.
1) If a third party has allocated assets to a minor child and has excluded one parent from managing these assets, the other parent is solely responsible for managing these assets and representing them in this area. The third has both
Parents are excluded from the administration or if the other parent is affected in the manner of Section 145 (1), first sentence, these powers go to the guardian if one is to be appointed (Section 187), otherwise to an assistant to be appointed by the court (§ 275) about.
2) If the third party has appointed an administrator for the allocated assets, this is, if he is suitable, to be appointed by the court to assist the court for these assets, excluding others from the administration.
3) If one parent has allocated assets to the child and excluded the other parent from administration or has appointed an administrator for the allocated assets, Paragraphs 1 and 2 apply mutatis mutandis.
1) The care of the minor child includes in particular the preservation of the physical well-being and health as well as the direct supervision, the education, especially the development of the physical, mental, spiritual and moral strength, the promotion of the disposition, abilities, inclinations and development possibilities of the child as well as its training in school and at work.
2) The extent of care and upbringing depends on the living conditions of the parents.
1) The minor child has to follow the instructions of the parents. Parents have to take the age, development and personality of the child into consideration in their instructions and their implementation.
2) The use of force and the infliction of physical and mental suffering are not permitted.
As far as care and upbringing require it, the parent entitled to do so also has the right to determine the child's residence. If the child is elsewhere, the authorities and organs of the
General Civil Code (ABGB)
public supervision at the request of an authorized parent to assist in determining the whereabouts, if necessary also in the retrieval of the child.
1) Consent for medical treatment can only be given by the discerning and judgmental child; in case of doubt, the existence of this ability to discern and discern in minors who have
14 years of age, presumed. If the necessary insight and judgment is lacking, the consent of the person entrusted with care and upbringing is required.
2) If a discerning and discerning child agrees to treatment that is usually associated with severe or lasting impairment of physical integrity or personality, the treatment may only be carried out if the person who is responsible for the care and agrees Education is entrusted.
3) The consent of the discerning and discerning child and the consent of the person entrusted with care and upbringing are not required if the treatment is so urgently necessary that the postponement associated with obtaining the consent or consent kills life would endanger the child or would be associated with the risk of serious damage to health.
Neither a minor child nor the parents can consent to a medical measure that aims to permanently render the minor child unable to reproduce.
If an underage child who has reached the age of 14 has given its parents an unsuccessful opinion on its education, it can appeal to the court. After careful consideration of the reasons given by the parents and the child, the latter must make the appropriate dispositions for the best interests of the child.
1) If one of the parents is not entitled to care for and bring up the minor child, he or she still has the right to interact with the child personally. Upon request, the court must regulate the exercise of this right in a manner that is in the best interests of the child and, if necessary, completely prohibit it, especially if the child’s relations with the parent with whom it is growing up are intolerably disturbed.
2) The grandparents have the right to interact with the child personally, provided that this does not disrupt the marriage or family life of the parents (one of the parents) and their relationships with the child; otherwise, paragraph 1, second sentence, applies mutatis mutandis.
1) The parents must manage the assets of a minor child with the care of proper parents. You have to keep it in its existence and, if possible, to increase it; Money is to be invested according to the regulations on the investment of ward money.
2) In any case, the costs of administration including the expenses necessary for the maintenance of the assets and the orderly business operations and the payments due are to be taken into account from the assets; further also the costs of maintenance, insofar as the child is obliged to draw on his property according to §§ 140 and 141 or the needs of the child are not covered in any other way.
1) The parents must submit an annual invoice to the court for the underage child's assets if
a) to property an immovable thing, a right to such, a
Share in association persons or such in a society
heard without personality; or
b) the child's assets regardless of their assets under lit. a be
drawn components is so large that from its earnings the
Child support can be contested (Section 140 (3)).
General Civil Code (ABGB)
2) The court can exempt the parents from accounting in whole or in part, provided there are no concerns that they will properly manage the child's assets; as a rule, this is to be assumed if they themselves have devoted the property or most of it to the child.
1) A minor child can neither dispose of nor commit himself without the express or tacit consent of his legal representative.
2) After reaching the age of 14, however, he can dispose of things that have been left to him at free disposal and his income from his own acquisition and commit himself to the extent that this does not jeopardize the satisfaction of his living needs.
3) If a minor child concludes a legal transaction that is usually concluded by minors of his age and concerns a minor matter of daily life, this legal transaction, even if the requirements of Paragraph 2 are not met, with the fulfillment of the child's obligations retrospectively legally effective.
Unless otherwise specified, a minor child who has reached the age of 14 can undertake to provide services independently by contract, with the exception of services based on an apprenticeship or other training contract. The legal representative of the child can prematurely terminate the legal relationship established by the contract for important reasons.
Insofar as a minor child cannot be assigned fault earlier (§ 1310), subject to Art. 20 Paragraph 2 PGR, he / she becomes culpable after reaching the age of 14 according to the provisions of the law on damages.
1) Each parent is individually entitled and obliged to represent the child; his act of representation is legally effective even if the other parent does not agree with it.
2) Acts of representation and consent of a parent, the change of the first name or the family name, the entry into a church or religious society and the exit from such, the handover in foreign care, the acquisition of a nationality or the renunciation of such, the premature The solution of an apprenticeship, training or service contract and the recognition of paternity to an illegitimate child require the consent of the other parent to be legally effective. This does not apply to the acceptance of declarations of intent and items to be delivered.
3) Acts of representation and consent of one parent in financial matters require the consent of the other parent and the approval of the court in order to be legally valid, provided that the financial matter is not part of normal business operations. Under this condition, this includes in particular the sale and encumbrance of real estate, the establishment, acquisition, conversion, sale or dissolution as well as the change of the object of a company, the entry into such a company or the conversion of a company or cooperative, the waiver of a Inheritance law, the unconditional acceptance or rejection of an inheritance, the acceptance of a gift connected with encumbrances or the rejection of a donation offer, the investment of money with the exception of the types regulated in Section 230, as well as the filing of a lawsuit and all procedural orders that affect the subject matter of the proceedings concern in itself. Paragraph 2 last sentence applies accordingly.
1) In civil court proceedings, only one parent is authorized to represent the child; As long as the parents do not agree on the other parent or the court according to Section 176 appoints this or a third party as a representative, the representative is the parent who sets the first procedural act.
2) The consent of the other parent and the approval of the court required under Section 154 apply to the entire procedure.
General Civil Code (ABGB)
Presumption of illegitimacy
If a child is born after the 302nd day after the judicial divorce, separation or annulment of the mother's marriage, it is presumed to be illegitimate. This presumption can only be rebutted by a court decision that establishes that the child is descended from the mother's former husband.
Denial of marital status2
1) The mother's husband can contest the child's marital status within one year.
2) The period begins when the man becomes aware of the circumstances that speak for the illegitimate child. It begins with the birth of the child at the earliest.
3) The running of the deadline is suspended as long as the man is prevented from contesting the dispute by an unforeseen or unavoidable event within the last six months of the deadline.
1) The contest of marital status by the mother's husband is, apart from the case of Paragraph 2, a highly personal right of the man. If the man is a minor, he does not need the consent of his legal representative.4
2) If the man has been appointed a trustee in accordance with §§ 269 ff. And if one of the matters to be taken care of is the contest of marital status, the trustee alone has the right to dispute; he requires the approval of the court for this. If the man is not appointed such a guardian, although the requirements are met, the period for the dispute does not end before six months after the point in time from which the man can dispute the marital relationship himself or he is appointed a guardian. If the guardian has not denied the marital status in good time, the man can contest it himself after the guardianship has ended; at the time of the termination of the guardianship, the period begins to run again.1
If the man has not denied the marital status of a child within one year of the birth or if he has died or if his whereabouts are unknown, the public prosecutor may deny marital status if he considers this to be in the public interest or in the interest of the child or its descendants .
1) Marriage is contested while the child is alive by filing a lawsuit. The lawsuit is to be directed against the child. If it is withdrawn, the dispute is to be regarded as not having taken place.3
2) After the death of the child, only the public prosecutor can contest marital status. The contestation takes place through an application for a declaration of illegitimacy. The guardianship court decides on the application in extra-litigation proceedings.4
General Civil Code (ABGB)
Legitimation of illegitimate children1
a) by the subsequent marriage
1) If the paternity of the child has been established (Section 163b) and the father and mother of the child marry, the child becomes legitimate at the time his parents marry.
2) If paternity is established after the marriage, the acts of representation set for the child prior to the determination remain unaffected.
3) The effects of the legitimation only expire on the basis of a court decision which is issued in a procedure intended for the removal of the determination of paternity.
b) by favoring the sovereign
The illegitimate birth cannot do any harm to a child's civil respect and advancement. For this purpose there is no need for special favoring the sovereign, whereby the child is declared as marital. Only the parents can apply for one for an important reason that is in the child's welfare.
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