Alternating Custody: Conditions and Implementation

When a couple with children separates, they must agree on several aspects concerning the children's lives. In particular, they must decide on child support payments and who will primarily care for the child. According to Swiss law, both parents retain parental custody after separation (according to Art. 296 Para. 2 CC), as long as the child is a minor. However, due to the parents' separation, alternating parental custody must usually be determined (according to Art. 298 CC).

When agreeing to alternating custody with joint parental custody, the regular residence of the child must first be determined (according to Art. 301a CC). Additionally, it must be decided who will take care of the child's daily needs (food, clothing, daily care, etc.) and who will have decision-making authority in urgent matters.

While sole custody for one parent was the norm in the past, today, the model of joint custody is the standard, explicitly promoted in Swiss legal interpretation. This type of custody is considered by lawmakers as best suited to meet the child's welfare, as it allows the child to maintain regular relationships with both parents.

The principle of joint custody with alternating custody is to divide the shares of caregiving time and the child's accommodation between the two parents. Ideally, joint custody should allocate equal time to each parent. This way, the child continues to see both parents equally. However, in practice, the shares of caregiving can be adjusted based on each parent's personal and professional situation to best meet the child's needs.

Accordingly, there are many ways to divide and organize alternating custody. For example, the child could live with their mother for one week and with their father the next. Or, they may spend most of their time with their father, but every other weekend with their mother. Generally, school holidays are also divided between the two parents. However, it should be noted that the caregiving share must always be at least 30% of the time.

Agreement on Alternating Custody at the Time of Divorce

During separations, there is often a high risk of conflict over parental custody. The decision on custody and parental care significantly influences the future and welfare of the child and should therefore not be made lightly. In the context of a contentious divorce, sometimes only a judicial decision on a balanced and fair custody arrangement can contribute to de-escalating the situation between the two parents. Therefore, it may be advisable to seek the advice of a family law attorney during the divorce process to make the right decisions for your child despite the potential emotionally charged situation.

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If parents wish to agree to alternating custody with joint custody for their child, certain specific conditions must be met in the best interests of the child (see Articles 298 and 301 CC). In particular, both parents must:

• be able to adequately raise and care for their child
• have a parent-child relationship with the child
• provide a supportive social environment
• have a residence that is not too far from the child's school
• demonstrate mutual understanding and communication skills
• consider the wishes of their child, if the child is of discerning age

One of the most important criteria in determining alternating custody is the distance between the parents' residence and the child's school location. In the child's interest, the distance between home and school should not be unreasonably long. Additionally, parents must ensure that their child does not have to change schools and thus their social environment too frequently due to moves.

Application for Alternating Custody

If both parents agree at the time of separation that they want to exercise parental custody alternately, they must file a corresponding application with the court. Alternating custody can only be established upon request of at least one parent or at the request of the child itself (Art. 298 Para. 2 CC). If one parent objects, for example, if they wish to obtain sole custody of the child, the matter is submitted to the court for decision. In all cases, the court makes its decision based on the best interests of the child. Especially in contentious separations, it may occur that the court hears the child itself according to (Article 298 Paragraph 1 CC) as well as Article 12 of the Convention on the Rights of the Child (CRC) and gives its opinion special weight.

The model of alternating custody has been anchored in Swiss law for some time. However, it has only become the standard model for separations since 2017. This model is considered, unlike sole parental custody, to be in the best interests of the child. Not least, every child is entitled by law (Art. 273 CC) to regular and good relationships with both parents even after separation or divorce, which are clearly promoted by living together with both parents.

Alternating custody has many advantages in this sense, including:

• Both father and mother can spend regular time with their child and are significantly involved in its upbringing.
• The relationship between both parents and their child remains intact despite the separation.
• The children also maintain a close connection to the familial environment of their parents (grandparents, uncles, aunts, etc.).
• The responsibility and parenting duties for the child are evenly distributed between both parents.

During separations and divorces, children's interests are of paramount importance, and decisions should not be rushed. The future and personal development of the children are significantly at stake here. However, for parents confronted with this often emotionally challenging situation, legal decision-making can be complicated. Since the consequences of custody decisions are far-reaching, it is advisable to consult a family law attorney who can support you throughout the process. The attorney can advise you on the custody and care arrangement that best suits your family.