Skip to content

ABGB § 182 — Proportionality cap on § 181 measures (verbatim)

Jurisdiction: Austria · Citation: Allgemeines Bürgerliches Gesetzbuch § 182 · Authoritative source: ris.bka.gv.at — § 182 ABGB

The proportionality cap on Austrian apex-tier remedies. ABGB § 182 establishes that any restriction of Obsorge under § 181 must be limited to the extent necessary to safeguard the welfare of the child. This is the structural proportionality principle that operates as a constraint on § 181 measures — the court can withdraw or restrict Obsorge only so far as necessary, not as a general welfare-protective gesture.

§ 182 is doctrinally significant in PA litigation because it operates as a structural safeguard against over-broad apex-tier remedies. Where the welfare assessment supports targeted partial measures (e.g. removal of school-decision authority from the alienating parent), § 182 prevents the court from extending the measure to full Obsorge withdrawal absent welfare-protective necessity.

Verbatim text (current consolidated, post-KindNamRÄG 2013)

§ 182 ABGB — Proportionality

Durch eine Verfügung nach § 181 darf das Gericht die Obsorge nur so weit beschränken, als dies zur Sicherung des Wohles des Kindes nötig ist.

English working translation

§ 182 ABGB — Proportionality

By an order under § 181, the court may restrict Obsorge only so far as this is necessary to safeguard the welfare of the child.

Why this matters for PA

  • Proportionality principle codified. § 182 codifies the proportionality principle for § 181 Entzug der Obsorge measures. The court must tailor the restriction to what is nötig (necessary) for Sicherung des Wohles des Kindes (safeguarding the welfare of the child) — not what is convenient or generally welfare-protective.
  • Operational effect in PA cases. Where alienating-conduct findings support some restriction of the alienating parent's Obsorge, § 182 requires the court to consider:
  • Whether a targeted restriction (e.g. specific decision-making domains) would adequately safeguard welfare
  • Whether full withdrawal is necessary for the welfare interest
  • Whether intermediate measures (counselling orders, restriction of contact, supervised contact) would adequately address the conduct
  • Structural protection against over-broad measures. Where the welfare assessment supports partial measures, § 182 operates as a structural cap — the court cannot escalate to full Obsorge withdrawal absent specific necessity. This is doctrinally important because it prevents § 181 from operating as an outcome-determinative tool in litigated PA cases.
  • The interaction with the graduated-escalation doctrine. The Austrian Oberster Gerichtshof applies a graduated-escalation framework: less-invasive remedies under § 187 (2) Kontaktrecht restriction must be considered before § 181 Obsorge withdrawal. § 182 codifies the proportionality dimension of that doctrine.
  • Doctrinal parallel. The structural proportionality principle in § 182 parallels:
  • German BGB § 1666 (3) Verhältnismäßigkeit doctrine in the FamFG jurisprudence
  • Italian Cassazione's graduated-escalation requirement for art. 333 → art. 330 escalation
  • UK ECHR-derived proportionality requirement for s. 31 care orders

Procedural application

  • § 182 operates as a constraint on the court's discretion under § 181
  • The welfare-assessment professional (typically Familiengerichtshilfe) must address the proportionality question in their report
  • The court's order under § 181 must be reasoned with reference to the § 182 necessity requirement
  • The order is appealable on proportionality grounds where the welfare assessment supports less-invasive measures

Use in alienating-conduct cases

  • Where alienating-conduct findings are established, § 182 requires the court to evaluate the full graduated-remedy ladder before § 181 measures
  • The Austrian practice typically engages § 187 (2) Kontaktrecht restriction and § 107 AußStrG Erziehungsberatung before § 181 measures are contemplated
  • Where § 181 measures are imposed, the principle of proportionality means they are typically partial (specific decision-making domains) rather than entire (full Obsorge withdrawal)
  • Full § 181 withdrawal is reserved for the most severe sustained-PA cases where intermediate measures have demonstrably failed

Cross-reference

Sources & authoritative references

Topic baseline (independently verifiable):