In Switzerland, a clear distinction is to be drawn between parental authority and child custody. Parental authority consists of the set of responsibilities and obligations parents hold towards their minor children. Protection, education and support are incumbent to these responsibilities, where parents act as legal representatives until the child reaches 18 years old. This is not to be confused with custodies issues and visitation rights.
Who has parental authority?
Parental authority is inherent to both parents when they are married (art. 296 al.2 CC). Following the revision of the Swiss Civil Code in 2014, joint parental authority is now the rule after a separation, unless the situation requires the judge to grant parental authority to one parent only due to exceptional circumstances.
What about custody?
Joint parental authority does not mean joint custody. While the question has been raised whether to impose alternated custody as a rule, the Swiss Parliament has finally refused to impose it, leaving the responsibility to the judge, in case of disagreement of the parents, to decide if joint custody is suitable in a particular case.
In his assessment of the situation, the judge will take into account factors such as the child’s age, communication between the parents, residence of both parents and the distance between them, the child’s own wishes and most important the child’s well-being.
If the judge decides to assign custody to one parent only, the other parent will be granted visiting rights, the extent of which will also be determined based on the child’s welfare.
What happens if a parent plans to move abroad with his child?
Joint parental authority implies that it is not possible for a parent to move with his child abroad without the consent of the other parent. In case of disagreement, the Court or the child protection authority must decide whether the relocation is in the child’s interest or not.
What happens if a parent moves abroad to another country with his child without the consent of the other parent or against a court decision?
Switzerland applies the 1980 Hague Convention on Child Abduction. According to Convention, children wrongfully removed or retained in another Contracting States against the wishes of the joint holder of parental authority are to be immediately returned. The Federal Central Authority for international child abduction works with counterparts abroad to return a child as quickly as possible. One should keep in mind that even with countries having ratified the Convention, the proceeding can prove to be long and difficult. Proceedings are even more complicated when the child has been abducted to a country that has not ratified the Convention.
More information regarding divorce and family laws in Switzerland on www.legalexpatgeneva.com. For personal advise, please contact Nicolas Mossaz at Ochsner & Associés, 1 Place de Longemalle, 1204 Genève.
Phone: +41 22 786 88 66