Child Custody: Principles of Parental Responsibility and Visitation Rights
Child custody encompasses all aspects of childcare, with the child's welfare as the guiding principle. In Swiss law, parental custody or custody rights include various concepts, from parental authority to guardianship and visitation rights. This article provides an overview of Swiss regulations on parental custody, visitation rights, and custody rights.
Summary of Parental Custody or Custody Rights
Children are considered minors until the age of 18 and remain fully under parental supervision. Parental custody encompasses parents' rights and obligations towards their children. Whether married or divorced, joint parental custody is the default under Swiss law (Article 296 CC) since the 2014 legal amendment.
If parents cannot agree on custody during a separation or divorce, the court decides, focusing on the child's welfare. If the child's interests are at risk, the court may grant sole custody to one parent. Without such risk, the court can still assign special visitation rights to the non-custodial parent (Articles 133 and 273 CC).
Parental Custody Rights Explained
Parental custody determines who has the right and duty to care for the child, including the child's residence, guardianship, and legal representation (Articles 301-305 CC).
It covers both personal and property matters, including the child's welfare, care, education, supervision, and the management of the child's assets, inheritance rights, and savings (Article 318 CC).
Joint Parental Custody in Switzerland
Married couples automatically receive joint custody when a child is born. For unmarried couples, the mother initially gets sole custody until a joint declaration per Article 298a CC is made.
After divorce, joint custody generally remains in the child's interest. If parents agree on custody issues, they can amicably share parental responsibilities (Article 298, Paragraph 2 CC).
Post-separation or divorce, specific periods (days or weeks) are set for the child to stay with each parent, ensuring the arrangements benefit the child.
Sole Parental Custody in Switzerland
Swiss law stipulates that joint parental custody generally remains in place after a divorce or separation. However, in exceptional cases, joint custody may no longer be possible if the child's welfare requires it (Art. 298, Paragraph 1 of the Swiss Civil Code). This decision can be made by the parents themselves or by a court against the will of one of the parents. In all cases, the court decides on the exceptional granting of parental custody to one parent.
Sole custody of children is still relatively rare in Switzerland. One of the most important criteria for determining sole parental custody is the endangerment of the child's welfare in cases of abuse or physical violence. There may also be other reasons why a court decides on sole parental custody. For example, a parenting choice that contradicts state values or the endangerment of the child's assets through improper use of savings. Additionally, the court may decide to withdraw parental custody in cases of neglect or when a parent faces imprisonment or is severely addicted to alcohol or drugs.
Access Rights
There is a difference between custody and visitation rights. A parent who does not have custody still has visitation rights according to Article 273 of the Swiss Civil Code. These visitation rights allow the non-custodial parent to maintain contact with the child even after a divorce.
This right is considered essential for the child to maintain contact with both parents and to continue building a personal relationship with both. Accordingly, the respective parent is encouraged to exercise this right.
Parents can decide on the rules of visitation themselves. In most cases, the non-custodial parent is granted visitation rights on two weekends per month. During school holidays, additional access is usually granted for two to three weeks per year.
What Is Alternating Custody?
Shared custody can be agreed upon when parental custody is divided between both parents. Each parent then takes care of the child according to predetermined times, either on specific weekdays or weeks in the month. In shared custody, the child lives with both parents, but at different times, thus regularly changing their residence.
Ideally, the care shares of both parents should amount to 50% of the time each, meaning the child spends equal time with both mother and father. This allows the child to maintain a regular and active relationship with both parents. In some cases, the court decides on shared custody according to very specific criteria outlined in Article 298 of the Swiss Civil Code.
Why Should You Hire a Family Law Attorney for Custody Issues?
Legal questions regarding parental custody fall within the scope of family law. For a couple with a functioning marriage or relationship, custody issues are rarely relevant as long as both parents can jointly ensure the child's welfare. However, in the event of a divorce or separation, custody issues become of utmost importance.
In cases of disagreements between the parents, it is important to consult a family law attorney to ensure that the child's welfare is maintained under all circumstances. An attorney can provide you with legal information and help you make the best decisions for you and your family. They can also assist you in resolving legal disputes if you cannot agree on the custody of your child.
FAQ: Parental Custody in Switzerland
Under Swiss law, both parents have joint custody of the child. This applies to both married couples and after a separation or divorce. Sole parental custody is the exception in Switzerland.
Yes, in exceptional cases, parental custody and the right of custody can be transferred exclusively to one parent. A court can decide this if it believes it serves the child's best interests. Typically, cases of abuse or a violent environment justify this decision, which is relatively rare in Switzerland.
If the parents agree, it is possible to arrange alternating custody after a divorce, even if one parent has sole parental custody. With joint custody, it is not easy for one parent to waive their rights, as the law considers both parents responsible for their child.
It is in the child's best interest to continue seeing both parents. Even if parental custody is transferred to one parent, the other parent has visitation rights (according to Article 273 of the Swiss Civil Code). These visitation rights allow the child to maintain relationships with both parents.
In the child's best interest, both parents should be able to interact with their child and build a relationship. Therefore, a parent should not be prevented from seeing their child if they have visitation rights. If there is a dispute between the parents, the child protection authority may need to intervene.
All custody decisions are made with one principle in mind: the child's welfare. If the interests and welfare of the child require it, a judge may decide to grant sole custody to one parent. Visitation rights are also determined based on the child's best interests.
When joint parental custody is in place, a minor child cannot challenge this without special reasons. If the parents cannot agree on custody during a separation or divorce, or if the court has doubts about the validity of the request, the court may also consider the children's opinion.
Ideally, it is in the child's interest to see both parents equally, i.e., 50% of the time (possible with alternating custody). Generally, visitation is granted for two weekends per month and two to three weeks per year during school holidays. Visitation can be agreed upon between the parents or ordered by the court.