Joint Custody: Legal Framework and General Information

When a married couple has a child, the question of parental custody is clear because Swiss law grants parental custody jointly to both parents. In the event of a divorce, parental custody remains jointly by default, but custody and care can be divided (also known as shared custody), or under certain circumstances, awarded to only one parent (with the other parent retaining visitation rights). The court decides on custody based on the child's best interests (Article 298, Para. 2 of the Civil Code).

With joint or shared custody, parents jointly exercise parental custody and care in alternating rhythms. The latter is organized in alternating and regular periods specified in days, weeks, or months (see Federal Supreme Court ruling 5A_844/2019). For example, the child may live with the mother from Sunday evening to Friday afternoon and with the father from Friday afternoon to Sunday evening. It could also spend even weeks with the mother and odd weeks with the father.

Joint Custody for Unmarried Couples

Since 2014, the law also provides for joint custody for unmarried couples. However, an application must be made to the relevant Civil Registry Office, including a joint declaration from both parents. In the case of unmarried couples, the biological mother typically has sole custody by default until the biological father acknowledges paternity (Article 260 of the Civil Code). The application for joint custody under Article 298a of the Civil Code must be submitted jointly by both parents. If this is not the case, and there is a conflict over the recognition of parenthood, the child protection authority can be contacted under Article 298b of the Civil Code.

Upon request from a parent or even the child, a court can award joint or shared custody (Article 298d of the Civil Code). However, several criteria must be met to make such a request. Firstly, only the biological parents of the child, both of whom have parental custody, are of legal age, and are recognized as suitable, can file such a request. Secondly, the request must be in the child's interest. Thus, shared custody must not impose undue hardships on the child, such as long journeys to school.

When applying for joint parental custody, parents must also declare their joint willingness to care for the child and outline the terms for custody and care of the child. This declaration should demonstrate that the parents are able to communicate and cooperate with each other and that they are capable of raising their child. Note that if the child is capable of representing their own interests, their opinion will be considered before that of their parents (Article 298 of the Civil Procedure Code and Article 12 of the Convention on the Rights of the Child).

When parents share custody of their child, they also jointly assume the rights and responsibilities regarding their child. Therefore, one of the criteria for granting joint custody is the parents' ability to cooperate and communicate. Conflicts between parents must not affect the child's well-being and future and prevent the child from developing under good conditions. In case of conflicts between parents regarding decisions concerning the child, a court may need to intervene. If you need assistance, seek help from a family law attorney.

When both parents exercise joint custody of their child, they are responsible for decisions regarding the child's:

• Education
• Care
• Determination of residence
• Legal representation
• Management of their assets, savings, and wealth.

Parental Custody = Parental Care?

Within Swiss custody law, a distinction is commonly made between parental custody and parental care. Custody encompasses the care time and legal residence of the child, which, in the case of shared custody among separated parents, mostly lies primarily with one of the parents. This is simply because the child cannot be divided between two residences simultaneously. In such cases, it is referred to as the sole custody of one parent. Nevertheless, even with sole custody, the other parent still retains parental custody, adheres to their parental duties, and furthermore, has a right to personal contact with their child.

Restrictions on Shared Custody

When sharing custody of your child, decisions such as one parent's relocation should not be taken lightly. The welfare of the child takes precedence and determines whether the move can take place. If the new residence remains near the other parent's residence, this is not a legal issue. However, if the relocation occurs outside Switzerland or has significant implications for the exercise of parental custody, the consent of the other parent is legally required (Article 301a, Para. 2 of the Civil Code). If you cannot reach an agreement, a court may need to decide.

Note that with sole parental custody, the custodial parent is not required to seek permission for relocation. However, they are still legally obligated to inform the other parent (information obligation under Article 301a, Para. 3 of the Civil Code).

In rare cases, it is possible for only one parent to have custody of the child. This is known as sole parental custody. Here too, the best interests of the child are the decisive factor when deciding on sole custody, and this is only permitted under strict conditions.

Sole parental custody can be agreed, for example, on the basis of the availability and/or professional situation of the parents. In most cases, however, only abuse, neglect, serious breaches of duty towards the child and general endangerment of the child's welfare justify sole parental custody. Withdrawal of parental custody is seen as a last resort to protect the child when other solutions have failed.