The question of child custody is often the most delicate and emotionally charged aspect of a divorce or separation. Swiss law places the best interests of the child at the heart of every decision relating to their personal situation. Since the parental authority reform that entered into force on 1 July 2014, joint parental authority is the general principle applicable to all parents, whether married or not. PBM Avocats assists parents in reaching amicable agreements on custody and, in the event of dispute, represents them before the civil courts of Geneva and Vaud.
Joint Parental Authority: General Rule since 2014
Since 1 July 2014, joint parental authority is the rule for all parents, regardless of their civil status. Art. 296 SCC grants fathers and mothers joint parental authority from the child's birth if the parents are married. Art. 298a SCC extends this principle to unmarried parents who make a joint declaration of parental authority before the civil registry, and art. 298 SCC enshrines it in the case of divorce or judicial separation.
Joint parental authority means that both parents must make important decisions concerning the child together: choice of school, significant medical care, religion, change of residence. Sole parental authority being attributed to one parent is only ordered in exceptional situations, notably when the other parent is seriously deficient, incapable or absent, or when cooperation between them is structurally impossible and harmful to the child.
Physical Custody: Primary Custody and Shared Custody
Distinct from parental authority, physical custody refers to the child's effective place of residence and day-to-day care. It may take two main forms. In primary custody, the child lives with one parent, who assumes most of the daily care, while the other parent benefits from a right to personal relations (visitation rights). In shared custody, the child shares their time significantly between the two parental homes, according to an arrangement that may be weekly, bi-weekly or based on another distribution adapted to the child's needs and the parents' organisation.
The Federal Supreme Court held, in its landmark ruling ATF 142 III 617, that shared custody may be ordered by the court even if one parent opposes it, provided it serves the child's best interests. To assess its relevance, the court examines in particular the parents' ability to cooperate, the geographical proximity of their homes, the child's schooling situation, their age and particular needs. PBM Avocats helps its clients prepare and document the relevant factual elements to support a request for shared custody or to demonstrate its inappropriateness.
The Right to Personal Relations: Visitation Rights
The child has the right to maintain personal relations with both parents and the latter have reciprocally the right and duty to maintain these relations (art. 273 SCC). Visitation rights — the common term for personal relations — are fixed by the court in the event of disagreement between the parents. In practice, standard visitation rights include alternating weekends, part of the school holidays and public holidays, but the allocation may be adapted according to circumstances.
Visitation rights may be restricted, or even suppressed, if the relationship between the visiting parent and the child endangers the latter's development (art. 274 para. 2 SCC). Special modalities such as supervised visitation, exercised in the presence of a third party or at a meeting place, may be ordered when circumstances justify it. Conversely, a parent who systematically hinders the other parent's visitation rights may have their physical custody removed, cooperation with the other parent being a determining criterion in the assessment of parental fitness.
Consideration of the Child's Best Interests and Wishes
Every judicial or administrative decision relating to custody must be based on the best interests of the child, a principle enshrined by domestic law (art. 11 Federal Constitution; art. 3 CRC) and by the United Nations Convention on the Rights of the Child (CRC), ratified by Switzerland in 1997. The child capable of discernment has the right to be heard in proceedings that concern them (art. 298 para. 1 SCC; art. 12 CRC). In practice, the court directly hears the child or appoints a guardian ad litem charged with defending their interests in the proceedings.
The wishes expressed by the child are not binding on the court, but they are an important element, whose weight increases with the child's age and maturity. A social report or child psychiatric assessment may be ordered to help the court evaluate the emotional ties, parental abilities and the child's psychological situation. PBM Avocats ensures that the child's voice is heard and correctly relayed in the proceedings, in collaboration with specialised professionals.
Frequently Asked Questions about Child Custody
What is the difference between parental authority and physical custody?
Parental authority (arts. 296 et seq. SCC) is the right and duty to make important decisions concerning the child: choice of school, medical care, relocation, religion. Since the 2014 reform, joint parental authority is the rule for all parents, whether married, separated, divorced or unmarried. Physical custody — sometimes called de facto custody — refers to the child's primary place of residence and day-to-day care. It may be attributed to one parent (sole custody), with visitation rights for the other, or organised alternately between the two parents (shared custody). The two concepts are therefore distinct: one may have joint parental authority while having primary physical custody with one parent.
What criteria does the court take into account when determining custody?
The court rules on custody in the best interests of the child (art. 133 SCC). The Federal Supreme Court's case law has developed a series of criteria: the educational abilities of each parent, actual availability (time devoted to the child), stability of living arrangements and schooling, proximity of parental homes, the parents' ability to cooperate with each other and to foster the child's relationship with the other parent, as well as the child's emotional ties and wishes (progressively taken into account depending on their age and maturity). The court may order a child psychiatry expert assessment or a social report prepared by a youth protection service, particularly in conflicted cases.
Under what conditions is shared custody ordered?
Since the landmark Federal Supreme Court ruling (ATF 142 III 617), shared custody may be ordered even in the absence of agreement from both parents, if it serves the child's interests. For it to be viable, courts examine in particular: the ability of both parents to cooperate on a daily basis, the geographical proximity of the two homes, the child's schooling, the stability of each household, and the child's needs according to their age. Shared custody is not appropriate for very young children who need a stable anchor point, nor when the relationship between the parents is marked by intense conflict making any cooperation impossible. The court has broad discretion.
Can a parent move abroad with the child without the other parent's consent?
No. In the case of joint parental authority, the child's relocation abroad requires the consent of the other parent holding parental authority (art. 301a SCC). In the event of disagreement, the court decides in the best interests of the child, taking into account in particular the intensity of ties with each parent, living conditions in the destination country and the impact of the move on the other parent's visitation rights. If a parent unilaterally moves the child abroad without authorisation, this may constitute wrongful removal within the meaning of the 1980 Hague Convention, which requires the return of the child to their state of habitual residence. PBM Avocats regularly handles such cross-border cases.
How can a custody decision be modified after divorce?
A custody decision may be modified by the divorce court or by the competent tribunal when circumstances have changed significantly and durably since the judgment or the last decision (art. 134 SCC). The most frequent grounds are: a parent's relocation, a change in professional working hours, a change in the child's schooling or emotional situation, or a deterioration in the parent-child relationship. The modification procedure may be initiated by either parent, or by the child protection authority (CAPA) if the child's wellbeing is threatened. The court may also order urgent provisional measures if the situation requires it. The child's view, proportional to their age, is gathered and taken into account in the decision.