Law Without Justice

As in most countries in the West, Austrian family law is meant to serve the best interests of the children. But what if Justitia errs?

In an unfamiliar legal system, custody can be a nightmare for foreign women I Photo: R. Zumbuehl

In an unfamiliar legal system, custody can be a nightmare for foreign women I Photo: R. Zumbuehl

In an unfamiliar legal system, custody can be a nightmare for foreign women I Photo: R. Zumbuehl

It started in Paris, famous for baguettes, the Eiffel Tower and the Seine. And most of all, for its romance. Beth Alexander, then 22, had the world lying at her feet when she came to France seven years ago for an international students’ weekend.

About to graduate from Cambridge University and accepted for a masters programme at Columbia University in New York, she was swept off her feet by an exotic, charming doctor from Vienna. It was her first serious relationship. “Mister Right” visited her twice in Great Britain, her home country, and then proposed.

With both being Orthodox Jews, getting married at an early stage of the relationship was not unusual, so she said yes. “I gave up Columbia, he told me I didn’t need it,” she recollected. Her parents, however, were cautious: “Go live there first, get to know him, you don’t know each other”, Alexander recalled. “But he was very convincing and told my parents: I want to look after Beth.”

The big Jewish wedding in her hometown of Manchester followed in October. “I realised I had been naive. He wasn’t the man I had so admired, he wasn’t fit to be in a relationship,” Alexander said. “It all came out after the wedding. He was physically violent, but never left bruises.” Hoping it would bring them closer together, she got pregnant, and twin boys were born three years later.

But things were far from perfect.

From the beginning, Alexander says, she was physically and emotionally abused by her husband. So she filed for divorce in February 2010. From there, she says, “The legal abuse actually got worse. It has been horrific.”

According to Alicia Pinkston, an American counsellor at the Consultation House in Vienna, the already traumatic experience of divorce is often even worse when you don’t know language, culture and people in your country of residence.

Alexander’s case has become something of a cause celebre in the Jewish community, both here and abroad, and has been written up in international Jewish media.

“This is not a case of classic xenophobia, it is a case of protection of their own folks. It is a perversion of the law within the legal system,” said a Viennese rabbi familiar with the case, summing up the judicial battle that has unfolded since.

It included attempts to get Alexander declared mentally ill and resulted in the children being taken away from her in the presence of the police. They were two years and two months old.

 

Trapped in an abusive relationship

Beth Alexander and her twin boys when they were newborns I Photo: Courtesy of Beth Alexander

Beth Alexander and her twin boys when they were newborns I Photo: Courtesy of Beth Alexander

Within a few months of the wedding, Alexander knew she needed help. She would rather forget much of what happened, emotional and physical abuse that only increased with time: “I come from a happy home, so I did not recognise it in the beginning.” She hoped that having children would help her troubled marriage: “I got pregnant thinking he was going to change.”

But things only got worse.

Not yet entirely fluent in German and without family or friends in her adopted country, Alexander didn’t know where to turn.

“This happens a lot”, said Dr. Brigitte Birnbaum, a Viennese attorney specialising in Family Law. Unfamiliar legal systems often have very different assumption, resulting in misunderstandings that can be disastrous for foreigners:

“If you lack a network, it is easier to be thrown off track,” she said. Alexander’s approach was initially reserved, reflecting her upbringing, and it didn’t help her case: “She reacted like a lady, typically British. She didn’t talk with anybody about the domestic conflicts she had with him. He, on the other hand, reacted differently,” the Viennese rabbi said.

Of course, not every bi-national separation gets as complicated as Alexander’s. According to Statistik Austria, 18.9 per cent of weddings in Austria were between Austrians and non-Austrians in 2012. There is no equivalent figure for divorces, but with the overall divorce rate in Austria (42.5 per cent of marriages in 2012), an equivalent percentage is considered likely.

International family law is not standardised, even in the EU, resulting in custody battles like that over now 6-year-old Oliver between an Austrian mother and a Danish father: Danish courts awarded custody to the father, and Austrian courts to the mother. The father abducted the child in 2012 before his mother’s eyes.

It will take “a long time” before family law is integrated on a more international level, Birnbaum said: “Of course there are attempts, but it is difficult. Family law has a long tradition in Europe, either as Catholic countries or as Protestant.”

However, that should not have mattered here, as both parents are observant Jews, a tradition in which mothers are held in very high regard.

“Respect for motherhood is deeply rooted in Jewish culture,” confirmed the Viennese rabbi. Jewish identity itself is, in fact, matrilineal, i.e., being passed on through the mother. A child born of a Jewish father and Christian mother, for example, is not considered a Jew.

However, for Judge emeritus Lilian Hofmeister, Alexander’s case comes as no surprise in the Austrian legal system: “This is particularly true in custody wars over sons,” Judge Hofmeister said. “There seems to be a new ‘rule of thumb’, which states: ‘Sons belong to their fathers’,” she said. “In the course of my pro bono work, I have come across cases that I wouldn’t have thought possible from my understanding of the law,” she added.

While she was not familiar with all the details of this case, she said that especially with parents raising their children religiously, courts often prefer the fathers to the mothers. “I often get the impression that fathers use women as baby machines,” Dr. Hofmeister said, “As soon as the baby is born, they want to get rid of the mother(…), with foreigners, it is even easier.” As a social critic and feminist, she sees the situation in Austria as “a ‘war against women as mothers’, something not yet being examined by the courts.”

As the twins were born in Austria, Alexander’s case is governed by Austrian law: After a 1.5-year custody battle, Judge Susanne Göttlicher granted full and immediate custody to her husband, basing her decision on one psychological report. In the report, a court-appointed psychologist deemed her unfit to parenting: “The mother has limited parenting abilities (…) she inadequately interacts and bonds with her children.”

For Alexander, the report has been fabricated – a procedure that has just caused a scandal in Salzburg, where a court-appointed psychologist is believed to have written 13 reports for courts predominantly in custody wars, using pre-fabricated textual elements and having manipulated the psychological tests.

To prove the report wrong, Alexander had herself re-assessed privately, leading to a second court-commissioned evaluation, by Dr. Werner Leixnering. Both reports contradicted the initial report and stated that she was perfectly sane and a good mother. To date, Judge Göttlicher has declined to accept these reports in evidence.

Claiming bias, Alexander filed for a replacement of the judge in January, which has put the case on hold for nearly six months.

 

A battle on two fronts

Bildschirmfoto 2013-07-03 um 13.57.59The psychiatrist who was privately commissioned to assess Beth Alexander was DDr. Gabriele Wörgötter, a doctor specializing in psychiatry and neurology and a court-certified expert. Often, she said, the wrong experts are chosen by the court:

“Many judges don’t know the difference between psychologists and psychiatrists,” she pointed out, so that assessments are often written by psychologists who, she said, can’t tell the difference between psychiatric distress – for example, caused by a woman losing her children – and a mental disease. “This is no isolated case,” Wörgötter said.

Judge Hofmeister, who was also former chairwoman of “Frauen Rechtsschutz” (Women’s Legal Defense), also criticises the role of court-appointed experts in general:

“In many cases, weak judges appoint incompetent official experts,” she said, pointing out that so-called experts are often not ‘experts’ in the appropriate field. On top of that, Austrian law leaves little room for later corrections:

“Courts have an aversion – something that has no legal justification – to privately ordered reports (Privatgutachten) and don’t accept them,” Judge Hofmeister said.

 

Tuesdays and every second Sunday

Losing custody has meant that Alexander’s twin boys only see their mother each Tuesday and every second Sunday, visits that in practice have often been cancelled by the father. Each time, she has to pay €44 for required supervision.

In between the twins, who turned 4 in May, have been cared for by two Filipino nannies, neither of whom speaks German and only one some broken English, according to Dr. Willy Weisz, who accompanied Alexander on one visit.

Those who often suffer most in custody battles are the children. “Being snatched from their mother, in the presence of police, even if the father is the best one in the world, is a very traumatising experience,” Wörgötter explained.

The most important attachment figure for children at such a young age is the mother, she said, and if children lose their mother, a proper replacement has to be found – “otherwise the successful development of children can be heavily disturbed.”

As part of Alexander’s 2011 assessment by Dr. Ulrike Willinger, her children were also examined: At a year and a half, they showed marked developmental delays: “They hardly speak and have difficulties interacting with others,” the assessment said. Alexander sent out several notifications that the children were at risk (Gefährdungsmeldungen) to the Jugendamt, but says that “no action has been taken”.

Jugendamt spokeswoman Herta Staffa dismissed Alexander’s concerns, stating that they have a standardised procedure when they receive notifications: “I have heard from the regional branch responsible that the children are doing fine,” she said.

There is significant evidence that this is not the case. “The children are in a terrible state,” Alexander said in June. After visiting with the children in March, a member of the Jewish community and retired professor at the Vienna University of Economics and Business, made a formal statement, testifying that the children seemed depressed, with “blank faces and lifeless eyes”; they looked “bedraggled” and “lacking parental love and care”.

“Although they are twins,” she wrote, “they don’t seem to communicate with each other at all.”

The staff at the children’s kindergarten has declined repeated requests for an interview.

It has been nearly two years since Alexander lost custody of her children. On her blog helpbeth.org, over 3,000 supporters have signed a petition to the Austrian and the British governments for a “fair court hearing” for her two sons. Many wonder why this is not yet a diplomatic case between the U.K. and Austria.

Deputy Head of Mission at the British Embassy in Vienna Helen Pickering said that they were aware of the case and had “provided her with assistance and advice”, which Alexander reports consisted of a list of English-speaking lawyers and contact information for packing and moving companies.

Beth Alexander’s battle has now received international media attention, for example in the Times of Israel, and, more recently the Australian Jewish News. In March, more than one hundred people gathered in front of the Austrian Embassy in London to draw attention to the case, according to her blog.

In Austria, support for Alexander and her children is growing: Gerda Frey, the Austrian representative of the International Council of Jewish Women, has met Alexander:

“She is an absolutely sound, an intelligent, lovely person, and a very lovely mother. And my estimation of her plight is very much that an injustice has been done to her,” Frey said in a recent interview. Frey is also convinced that being a foreigner has been a disadvantage for Alexander in her custody fight, pointing to the “outrageous letters” from the Jugendamt.

The two letters she referred to were sent in 2011, informing her that she had to pay a total of €1,116 a month in child support for her two sons, who were now living with their father. This amount was based on the Jugendamt’s assumption that, as a Cambridge graduate, she “could, by applying her skills, earn €4,000 net, including special payments.” That’s an entirely unrealistic sum, Frey says: “You have to have a very high position to earn that much. It is unheard of” for a woman who is so young, and also a foreigner.

Later, the Jugendamt changed its position significantly, suggesting instead that she could earn on the level of an unskilled worker (“Hilfsarbeiter”). When confronted with the letters, spokeswoman Staffa denied that there was any “personal tone”, claiming only an “effort to achieve adequate support for the children”.

Today, the future of Alexander and her children is still unresolved, and her appeal to recuse the judge still in progress.

“Justice can only be done when this case is moved to another court, with another judge,” the Viennese rabbi said, “where all the evidence is taken into consideration, with no influence from key-players currently involved in this custody battle.”

However, just before press time, a decision was handed denying Alexander’s request for a change of venue, stating that “a transfer of jurisdiction to the Bezirksgericht Josefstadt is not in the interest of the children at the moment.” But with every day that passes, the legal argument grows that the children are now “used to their father”, as the psychiatrist Wörgötter knows from her 15-year-experience as a court-appointed expert.

The case has become about far more than just an – allegedly – inaccurate report by a court-appointed expert or a biased judge. A knowledgeable insider who knows both Alexander and her husband describes the situation as a systemic miscarriage of justice:

“This custody battle is a power play, and it’s irrelevant how the relationship worked, or didn’t work,” he said. “The system is to be blamed; how the court mishandled the case and how the social community, Jewish and non-Jewish, reacted.”

All of them, it seems, have forgotten about the two 4-year-old boys.

Bildschirmfoto 2013-07-03 um 13.45.27

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