Sole Custody and Sole Parental Responsibility in Switzerland – An Overview
If a marriage has resulted in children, the divorce often becomes particularly challenging. It becomes even more problematic if one parent attempts to revoke the other parent's custody rights. However, this is not easy, as Swiss civil law only permits such a revocation for compelling reasons. We explain when you are entitled to sole custody, what it means, and how to proceed in such a case.
What Is the Difference Between Custody and Parental Authority?
Parental authority encompasses many aspects of a child's life. In joint parental authority, both parents share the responsibility for raising the child, ensuring their education and medical care, determining their place of residence, protecting them from harmful influences, and managing their assets if necessary. Additionally, they are the child's legal representatives, meaning they can make legally binding decisions for the child and are liable for the child's actions up to a certain age.
Custody is only a part of parental authority. It means that the child lives with the respective parent and is cared for by them daily. Custody includes setting rules that apply in the household, such as regarding meal times, TV watching, study, and bedtimes.
What Does Sole Custody Mean?
Sole custody means that the child has a fixed residence with one parent and primarily stays with that parent. In the event of a divorce, sole custody is often awarded to the mother or father because the child needs a primary residence from a civil law perspective. Additionally, it is usually in the child's best interest to have only one residence, which facilitates school attendance and social life at the place of residence.
However, sole custody does not necessarily mean that the parent with whom the child lives also has sole parental authority. On the contrary, in most cases, both parents continue to exercise parental authority. This means that the parent without custody still has a say in the child's upbringing, education, contact, and residence. If the parent cannot or does not want to exercise this right personally, they are obliged to contribute to the child's welfare through maintenance payments.
The parent without custody is also allowed to maintain contact with the child. In Swiss administrative language, this is referred to as "personal contact." The two ex-partners must agree on how much time the parent without custody spends with the child and where this contact takes place.
What Are the Alternatives to Sole Custody?
Besides sole custody, there is also the option of alternating or shared custody. This means that the child alternates living with both parents. The time the child spends with each parent is referred to as "custody share." This is distinct from personal contact, which only describes the contact between the child and the parent without custody.
Alternating custody has the advantage that contact with both mother and father is equally maintained, and both can influence the upbringing. On the other hand, it can be a stress factor for the child to constantly switch between parents and adapt to different environments and household rules.
What Does Sole Parental Authority Mean?
If one parent has sole parental authority, it means that only this parent can make decisions about the child's daily life, education, residence, etc. This also includes sole custody, meaning the child lives only with the parent who has sole parental authority. The parent from whom parental authority has been revoked has no influence on the child's life. In some cases, contact with the child may be completely prohibited if it is in the child's best interest.
When Are You Entitled to Sole Custody?
According to Article 311 Paragraph 1 of the Civil Code, parental authority is revoked ex officio when: "1. the parents are unable to exercise parental authority properly due to inexperience, illness, disability, absence, violence, or similar reasons; 2. the parents have seriously neglected the child or grossly violated their duties towards the child." This means you can claim sole parental authority if the other parent:
- Is too young and therefore unable to care for the child properly,
- Suffers from a chronic illness or disability that makes it impossible to care for the child,
- Does not have the necessary means to provide the child with a reasonable quality of life,
- Is addicted to substances, e.g., drugs or alcohol,
- Is serving a prison sentence,
- Physically, psychologically, or sexually abuses the child,
- Misappropriates the child's assets,
- Denies the child basic rights, such as education or medical treatment,
- Commits serious parenting mistakes, e.g., incites the child to dangerous or criminal activities,
- Neglects the child, e.g., does not provide food and clothing or neglects hygiene,
- Moves in a dangerous environment that could negatively influence the child, e.g., organized crime.
How Do You Apply for Sole Custody?
If any of the above reasons apply, you can apply for sole parental authority along with the divorce. In this case, the divorce court will decide on the revocation of parental authority. If you wish to apply for sole parental authority before or after the divorce, you must submit a request to the locally competent child protection authority according to Article 315 Paragraph 1 of the Civil Code. This authority will first hear you and the other parent before deciding on the request.
However, keep in mind that revoking parental authority is a significant intervention in the child's life and their relationship with the other parent. Before making this decision, it is advisable to consult a family law attorney to determine whether there are compelling reasons for revoking parental authority or if the crisis can be resolved in another way, possibly even out of court. On the other hand, an attorney can also help you obtain a temporary injunction if, for example, there is psychological or physical violence against you or the child.
How Can You Regain Lost Parental Authority?
Neither the court nor the child protection authority can revoke your parental authority permanently. After the verdict, you must wait a one-year period before you can apply for joint parental authority. This application will only be successful if the reason for the revocation of parental authority no longer exists. An experienced family law attorney will review your case, help you gather the necessary documents, and determine the right time for the application.
FAQ: Sole Custody and Sole Parental Authority
No. Custody determines with whom the child lives and spends most of their time. Parental authority determines who has the responsibility for the child and can make decisions about their upbringing. Even if only one parent has custody, both parents can continue to exercise joint parental authority.
In a divorce, custody is often awarded to only one parent. This means that the child primarily lives in a household with that parent. However, the parent without custody is still allowed to see the child and welcome them into their home. They also retain parental authority and can therefore participate in decisions regarding the child's upbringing and life.
Both parents only lose custody if they are stripped of parental authority. As long as one or both parents have parental authority, at least one of them will have custody.
One or both parents can lose parental authority if they do not act in the child's best interests. This includes behavior toward the child, such as psychological and physical violence, sexual abuse, neglect, misappropriation of the child's assets, or serious parenting errors. The reason can also be related to the parent themselves if the father or mother is physically, psychologically, and/or financially unable to care for the child, for example, due to being underage, illness, homelessness, or addiction.
The parent who loses parental authority can no longer make decisions about the child's upbringing. They no longer have any influence on the child's education, residence, care, etc. However, they still have the right to see the child unless a court or child protection authority decides otherwise in the child's best interest.
If both parents lose parental authority, the court will appoint a legal guardian for the child according to Article 311 Paragraph 2 of the Civil Code. This guardian is determined by the child protection authority and does not necessarily have to be related to the child.
Yes, if the reason for the revocation of parental authority no longer exists. However, you are required to prove this. Additionally, a one-year period applies after the judgment during which parental authority cannot be reinstated.