Parental Custody After Divorce: Legal Framework and General Information
Parental custody rights govern the responsibilities and obligations of parents towards their children. What happens to these rights and duties in the event of a divorce, and who retains custody? In 2014, the legislator decided that, as a rule, both parents should continue to have parental custody after a divorce. However, there are exceptions. This article provides information on the legal framework for parental custody and the options available after a divorce.
Who Retains Parental Custody After a Divorce?
Since July 1, 2014, joint parental custody has been the norm in Switzerland following a separation or divorce. This joint custody generally applies regardless of whether the parents are married. Thus, for a married couple, a divorce theoretically does not change the joint custody, which remains with both parents after the separation (Article 296 CC).
Parental custody grants parents rights and duties towards their child. Parents with this right must take responsibility for the child's upbringing, daily care, property management, and savings. They are also the child's legal representatives to third parties and decide on the child's place of residence (see Articles 301-305 CC).
Those with parental custody are also obliged to ensure the daily care and maintenance of their child (e.g., buying clothes). All agreements on daily care, accommodation, and supervision fall under the area of parental custody. Divorced parents are legally required to agree on all these matters in the child's best interest.
How is Parental Custody Arranged After a Divorce?
Nowadays, parents increasingly opt to share custody after a divorce or separation so that each parent can spend time with their child and significantly participate in their upbringing (Article 298 Paragraph 2 CC). Joint custody with alternating residence means the child alternately lives with each parent.
During divorce proceedings, the court examines the possibility and advisability of alternating residence upon the parents' or child's request. Ideally, alternating residence allows the child to spend 50% of their time in each household. A common model is for the child to spend one or two consecutive weeks with one parent and then one or two weeks with the other parent.
In practice, alternating residence is often adapted to the situation, and the law is flexible in this regard. The most important thing is that the parents agree on the exercise of custody and that it is in the child's best interest. Both parents must be able to cooperate and communicate effectively regarding decisions and upbringing. In case of disagreements, the parents can turn to the child protection authority, which will decide on the organization and distribution of parental custody (Article 298b CC).
Can Parental Custody Be Changed After a Divorce?
In a divorce, the court also regulates the conditions for parental custody, leaving no ambiguities. The holders of parental custody are clearly determined by the court, whether it is both parents (as is usually the case) or just one parent (Article 298 Paragraphs 1 and 2 CC).
However, the situation of the parents can change after the divorce and over the years. Parents can then make a new custody agreement to change the conditions of parental custody or supervision. If they cannot agree amicably, they can involve the child protection authority or a court. Measures might include withdrawing parental custody or reorganizing parental supervision according to Article 298d CC.
In all cases, custody decisions are made solely based on the child's best interest, not the parents' interests.
Exceptional Case of Sole Custody
Swiss law considers joint custody for the child as the standard for unmarried, separated, or divorced couples. However, one parent may apply for sole custody, or a court may make this decision. The conditions for granting sole parental custody are stipulated in Article 311 of the Swiss Civil Code.
This is now a rare measure, as the Swiss legislator considers it more favorable for the child to maintain a relationship with both parents. Thus, even after separation or divorce, custody is only transferred to one parent if it is in the child's best interest. According to Article 314a CC, the child is also heard in such cases. Decisions on sole custody are particularly made in severe cases, such as abuse or gross neglect of parental duties.
Sometimes, a parent may choose to relinquish custody because they are physically, morally, or financially unable to take responsibility for the child. In all cases, courts consider sole custody as a last resort when all other solutions have failed. If there are no serious objections, the other parent usually retains visitation and contact rights even with sole custody.
Tip: If circumstances change, the court can reassess and potentially revise its decision on sole custody (Article 313 CC). However, a minimum period of one year must pass before parental custody can be restored.
What Can a Family Law Attorney Do for You?
In a divorce or separation, parents face complex situations involving both material and emotional issues. Emotions and conflicts often affect decision-making during a divorce and can further complicate custody issues. Custody decisions, however, have a significant impact on your child's future. Therefore, it is advisable to consult a family law attorney in case of a divorce to explore your options for arranging custody and to find the best model for you and your family.
FAQ: Parental Custody After Divorce
Parental custody (also known as parental authority) refers to which parent is primarily responsible for the child. The parent with custody must take responsibility for the child’s upbringing, education, and management of financial resources. As a part of parental custody, parental care determines which parent is responsible for the child's daily care and supervision, and to what extent.
According to the Swiss Civil Code, both biological parents generally retain parental custody of the child after a divorce or separation. Custody is only granted to one parent in exceptional cases. Within joint parental custody, parents have various options to arrange the shared care (parental supervision) in a manner that best serves the child's interests.
When both parents have parental custody, the child usually alternates living with both parents. Ideally, each parent should have the child 50% of the time. However, the time allocation can vary from family to family based on individual circumstances. Nevertheless, in this model, each parent is entitled to a minimum of 30% of the caregiving time.
Yes, parental custody can be redefined by mutual agreement between the parents, provided the child's welfare is maintained. This might occur if a parent, for example, can no longer take responsibility for the child due to health reasons. Additionally, a court or child protection authority can decide to restrict or entirely revoke a parent's custody.
If your custody rights are violated or hindered by your former partner, you can contact the child protection authority to enforce your rights. The court may then decide to take measures to restore your rights or even restrict the other parent's rights if it is in the child's best interests.
Sole custody is now a rare measure, considered only as a last resort in family conflicts. However, you can apply for it with the child protection authority or a court. To have custody removed from one of the divorced parents, it usually must be proven that the parent poses a risk to the child’s welfare.
Both the biological father and the mother have equal custody rights. Unmarried parents must first have paternity recognized and then submit a joint declaration at the civil registry office for joint custody to take effect. After a divorce, joint custody typically remains in place for both parents.