Tackling Child Custody Disputes in Switzerland
Taïsa Tadè-Klinkenbergh and Francesca Ranzanici Ciresa are partners at Klinkenbergh Legal, a law firm specialising in family law in the heart of Locarno, Switzerland. Founded at the beginning of 2023, the law firm accompanies and guides its clients throughout their entire process and promotes dispute prevention and alternative methods of resolution. Join us as we delve into the insightful perspectives of the pioneering partners at Klinkenbergh Legal, as they share their unique approach to family law and their dedication to fostering dispute prevention and resolution around the picturesque location of Locarno, Switzerland.
How does the legal system in Switzerland approach the concept of shared custody, and what criteria must parents meet to be eligible for such an arrangement?
Since 2014, in the event of a divorce, parents maintain equal rights and responsibilities in raising and caring for their children, known as joint parental authority. It’s crucial not to confuse this principle with child custody. Shared custody is not automatically granted by a judge in cases of separation or divorce; each case is assessed individually. The judge determines a custody arrangement that ensures the child’s stability and regular contact with both parents. In all matters concerning children, the judge must prioritize the child’s well-being. Maintaining a close relationship with both parents is vital for a child’s harmonious development, emphasizing the importance of the child’s ability to maintain such relationships whenever possible.
In addition to assessing the parenting abilities of both parents, the court will evaluate their capacity to communicate and cooperate consistently concerning their children. It’s crucial to note that a parent’s opposition to shared custody does not automatically imply a lack of necessary cooperation. The geographical distance between the parents’ residences is also a significant factor. The paramount concern is to ensure the child’s continuous growth and development within a supportive and affectionate environment. Moreover, stability, especially as it relates to the child’s previous living arrangement, is of utmost importance. Joint custody becomes even more suitable if parents had been sharing caregiving responsibilities before their separation. Other factors considered include the child’s age, relationships with (half-) siblings, and integration into the broader social community. All these elements contribute to determining the most suitable custody arrangement in the best interests of the child.
Shared custody should only be disregarded if the relationship between the parents, concerning the well-being of their other children, is so hostile that it leads to the reasonable belief that joint custody would subject the child to a significant conflict between the parents, clearly contrary to the child’s best interests.
Could you explain the role of the child’s preferences in custody decisions? At what age do their opinions typically carry weight in court?
The will of the child is one of several criteria when deciding on personal contact and custody. When considering the will of the child, the age of the child and its ability to form an autonomous will must be taken into account. This ability is assumed to be present from around the age of 12.
According to Article 314a Paragraph 1 of the Civil Code, the child must be personally and appropriately heard by the court or a designated third party, unless the child’s age or other valid reasons dictate otherwise. The child’s participation in the hearing is rooted in their fundamental rights and serves the purpose of establishing the facts of the case. In situations involving older children, the focus is on safeguarding their individual rights, granting them the right to participate in the proceedings. For younger children, the hearing primarily serves as a means of evidence, allowing the judge to form a personal perspective and gather additional information to understand the situation accurately. Therefore, parents, as parties involved in the proceedings, may request the child’s hearing, but it typically occurs automatically, regardless of the parties’ submissions.
The child’s capacity for discernment, as defined in Article 16 of the Civil Code, is not a prerequisite for the hearing. According to the guidelines of the Federal Court, a child can be heard once they reach the age of six. This age requirement is irrespective of the fact that formal logical thinking is generally believed to develop between the ages of eleven and thirteen, and the ability for differentiation and verbal abstraction typically matures around that time. Before reaching this age, the purpose of hearing the child is primarily to enable the judge to form a personal opinion and gain a comprehensive understanding of the child’s situation, aiding in establishing facts and making decisions. The choice of the person authorized to conduct the child’s hearing is generally at the discretion of the judge. However, it contradicts the legal rationale to delegate this responsibility systematically to a third party, as it is essential for the court to form its own direct opinion. Therefore, the competent court typically conducts the hearing itself. In exceptional circumstances, a child specialist such as a child psychiatrist (especially during expert examinations) or a staff member from a youth protection service may conduct the hearing. These circumstances involve particularly sensitive cases where specialized skills are necessary to avoid harm to the child’s health, such as in cases of suspected pathogenic family relationships, acute family conflicts, noticeable disorders in the child, or considerations related to the child’s age.
If the judge is required to intervene multiple times within the same domestic dispute, or if the initial decision is appealed, the child is not necessarily required to be heard on each occasion. Moreover, if the child has already been heard by a third party, often as part of an expert assessment, the judge may choose to waive a repeat hearing if it would impose an unbearable burden on the child, such as in cases of acute loyalty conflicts. In such situations, if no new outcome can be expected from a further hearing, or if the expected benefits do not reasonably outweigh the burden of the new hearing, the judge can rely on the results of the prior hearing conducted by the third party. This is contingent upon the third party being an independent and qualified professional, the child being questioned about the crucial elements pertinent to the case, and the hearing or its results being current. It is crucial to emphasize that any decision to waive a new hearing presupposes that the child has been given the opportunity to express their views and that the results of the previous hearing remain pertinent to the decision-making process.
Among the “valid reasons” for waiving the child’s hearing as per Article 314a, Paragraph 1 of the Civil Code, the risk of endangering the child’s physical or psychological well-being is considered. It’s important to note that mere apprehension about imposing the stress of a hearing on the child is insufficient grounds for waiver. To justify skipping the hearing, this fear must be substantiated, and the risk must exceed the inherent strain present in any proceedings involving children’s interests.
Have there been any recent legal development in Swiss family law relating to child custody arrangements?
On September 25, 2023, the People’s Chamber widely supported a motion proposing alternating custody as the default arrangement in cases of parental separation. If parents in Switzerland get divorced, alternating custody of children might become the standard practice, following the acceptance of a motion by Marco Romano with 112 votes in favor and 42 against in the National Assembly. The motion calls for amendments to the Civil Code to facilitate this change.
However, the Federal Council expressed reservations about alternating custody, citing challenges not only in terms of parental interactions but also related to practical factors, such as the distance between parents’ residences and the associated increase in costs. Additionally, there are structural concerns, such as the labor market and availability of out-of-home childcare facilities, which are not always easy to reconcile. The Federal Council emphasized the importance of prioritizing individualized solutions that enable the child to maintain relationships with both parents, focusing on the child’s best interests, rather than mandating alternating custody. The decision now rests with the Council of States.
Taïsa Tadè-Klinkenbergh, Founder
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