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. 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. 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 decisionmaking process. Among the “valid reasons” for waiving the child’s hearing as per Article 314a, Paragraph 1 of the Civil Code, THOUGHT LEADER 71 Contact Taïsa Tadè-Klinkenbergh Founder Klinkenbergh Legal Piazza Grande 14, 6600 Locarno Tel: +41 91 760 00 50 Email: tk@tklegal.ch
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