A Mother Fights for Custody
Without EU-wide rules, battles across borders put parents increasingly at odds
In September, 41-year-old Dane Thomas Nørgaard Sørensen received a one-year suspended prison sentence for abducting his five-year-old son Oliver from Austria; his child with his estranged Austrian partner, Marion Weilharter. He had travelled to Austria in April, grabbed Oliver out of Weilharter’s car as she dropped him off at kindergarten, and drove him back to Denmark. The criminal court in Graz convicted Sørensen of unlawful imprisonment, child abduction and aggravated assault.
This dramatic turn of events had come on the heels of a drawn out battle for legal custody in both countries. But according to Weilharter’s attorney, the case should have never gone to court in the first place, because although Oliver was born in Denmark, his parents never married and citizenship then follows the mother, granting Weilharter sole custody under both Austrian and Danish law.
According to FORBA (Forschungs- und Beratungsstelle Arbeitswelt), children with Austrian parent(s) automatically receive Austrian citizenship – even if born outside the country, and according to norden.org, the website for the official co-operation in the Nordic region, a child is granted Danish citizenship automatically only if born in Denmark of parents married at the time of birth.
So far, so simple. Then Weilharter moved back to Austria with Oliver in 2010, a move Danish authorities allegedly viewed as kidnapping, according to newspaper accounts, which led to charges against her. Weilharter claims none were ever filed:
"My move back to Austria was not illegal, and I have never violated parental custody. The court's decision in Denmark was wrong," she said. "They never talked to Oliver or me, nor asked for any expert opinion on what was best for my son. Denmark should never have decided for Sørensen; he has never had any kind of custody. Oliver isn’t even a Danish citizen!"
When speaking to Weilharter, it is clear that her relationship with Sørensen did not end well, but she is adamant that she never meant things to escalate, and that she left when her personal and professional situation became unbearable.
Something rotten in the State of Denmark?
In Denmark, the Family Law Division of Ankestyrelsen (National Social Appeals Board) and the Foreign Ministry deal with cases of child abduction to and from countries that have signed the Hague Conventions. According to the Ministry’s website, child abductions to and from Denmark have increased in the past 20 years, with a current load of 19 cases involving 42 children.
Weilharter contests these numbers: "They are too low. I have spoken to many women – Danes and other nationals, in similar situations, and I know for a fact that the number is much higher," she said. According to her attorney, Mag. Britta Schönhart, it’s "a mentality issue", where Austria is too compliant.
"Denmark has entitlement issues, as evidenced by its ‘opt-outs’ from EU policies, and Danish law is backwards in many respects," she said. For example, "Danish penal code does not acknowledge that if a parent with sole custody leaves the country, the other parent is not entitled to have the child returned."
Even some Danish lawyers agree that the law is out of date. "Much of Danish law is based on framework and is not very detail regulated," said Danish attorney, Marianne Linaa Steiness. "As in British Common Law, we often look to administrative and judicial practices, and how they have reflected on past decisions – something that should be questioned in international disputes over child custody and abductions. That these issues have yet to be clarified is problematic."
Weilharter has become very disillusioned.
"I have lost faith in the Danish legal system and in a country that places the rights of the abductor above those of the child. It is not right that the country to which a child is abducted gets to decide its fate," Weilharter said. As she sees it, the Danish authorities failed to examine their own competence to hear the case: "They should have deferred the decision to Austrian authorities, when it was confirmed that Oliver was Austrian and that I have sole custody."
With Oliver in Denmark, Weilharter has very little contact with her son, and she worries how he is coping without her and his Austrian family and playmates. She has spoken to him via Skype but he gives one-word answers, and doesn’t say much. Weilharter’s voice is fraught with emotion when speaking of her son, and it is clear that the situation is very taxing. Oliver had adjusted well to life in Graz, she says, and insists she never denied Sørensen access to the child. He is thinking more of himself, she says, than of their son’s well-being.
The question of who decides
Meanwhile, the case continues and Schönhart is concerned that should Landsretten (Danish High Court) decide in Sørensen’s favor, it will set a dangerous precedent for vigilantism in international child custody cases. Via Skype from her home in Graz, Weilharter said that she is awaiting the Danish High Court’s decision before deciding how to proceed. She is in frequent contact with EU parliamentarians, and says that Viviane Reding, vice-president and commissioner for justice, fundamental rights and citizenship has been made aware of the case.
"One of the few options left to us now is to apply international pressure on Denmark," Schönhart says. "Seeking to try the case at the European Court of Human Rights will take too long."
In the absence of a higher European authority, the question of who will ultimately decide Oliver’s fate, and by implication, that of the future children of Europe, remains open. Over time, these issues will be solved on a case-by-case basis, providing the framework for future EU legislation, says Schönhart. What is less clear is how Europe will go about harmonizing its laws, and to what extent these issues should be regulated at EU level, while honouring national sovereignty.
"We need a European body or higher court deciding cases like these," Schönhart asserts. Steiness wholeheartedly agrees, suggesting that "in an ideal world", international conflicts like this would be treated by a European Family Court.
Weilharter finds the current situation agony. "I would prefer that such matters were decided by a neutral court in another country," she said.
For now, Oliver is still in Denmark, most probably the only jurisdiction where his father’s custody is valid. "Sørensen is unable to travel with Oliver outside Denmark," Weilharter says, leaving the child cut off from Austria until he is old enough to travel on his own.
"It seems to me that in today’s Europe, criminals have more rights than children."
Thomas Nørgaard Sørensen and his attorneys declined to be interviewed for this article.