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Fair custody rights for fathers of children born out of marriage

Sporer v. Austria  | 2011

Fair custody rights for fathers of children born out of marriage

Everyone has the right to respect for his private and family life...

Extract from Article 8 of the European Convention on Human Rights

Background

Mr Sporer had a son born out of marriage. When his relationship with the mother ended, he applied for custody of their child. However, under Austrian law, custody of a child born out of marriage was automatically given to the mother, with only a few exceptions. The mother was therefore given sole custody of the child.

Judgment of the European Court of Human Rights

The Strasbourg court noted that, if the couple’s child had been born within a marriage, then the Austrian courts could have granted custody to Mr Sporer if this had been in the child’s best interests. However, because the child had been born outside of marriage, Mr Sporer could only obtain custody in exceptional circumstances. He had therefore been discriminated against without sufficient justification, compared to a father of a child born within a marriage. This had breached his basic rights.  

Follow-up

In 2013 the law was changed, so that courts can grant custody rights to the fathers of children born out of marriage, according to the child’s best interests. 

Additional information